Citation Nr: 1328348 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-13 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for loss of right kidney due to cancer, claimed as the result of herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1967, to include service in the Republic of Vietnam from January 1966 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In December 2009, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing has been associated with the claims file. In regard to this hearing, and pertinent to the Board's duty to notify and assist the Veteran, the Court has held that that provisions of 38 C.F.R. § 3.103(c) (2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: to explain fully the issues, and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing in this case, the undersigned Veterans Law Judge discussed the evidence necessary to substantiate a claim for service connection. The Veterans Law Judge specifically inquired as to basis of the Veteran's contentions as to why service connection was warranted for his disability and indicated that medical evidence supportive of those contentions would assist in substantiating the claim. Accordingly, the Bryant duties were met, and the hearing is legally sufficient. See also Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999). In March 2011 the Board reopened the Veteran's claim of entitlement to service connection for right kidney removal due to cancer and remanded that matter for additional development, to include obtaining additional records and affording the Veteran a VA examination. As the Board finds that the agency of original jurisdiction (AOJ) substantially complied with such remand orders, no further action is necessary in regard to the issue herein decided. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file reveals a brief from the Veteran's representative that was not associated with the paper file. The brief has been reviewed. FINDINGS OF FACT Resolving all doubt in his favor, the Veteran's loss of right kidney, due to cancer, is etiologically related to his military service, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for loss of right kidney due to cancer, claimed as result of herbicide exposure, are met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board's decision to grant service connection herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations in regard to the Veteran's appeal. II. Analysis The Veteran contends that he incurred right kidney cancer, requiring removal of that kidney, as the result of in- service exposure to herbicides. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations also provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era -from February 28, 1961, to May 7, 1975- shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (6) (iii). The Board notes that the Veteran's service personnel records reflect service in Vietnam during the relevant time period, i.e., from January 1966 to April 1967, and, as such, finds that he is presumed to have been exposed to herbicides. If a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for numerous disorders listed at 38 C.F.R. § 3.309(e) (as amended, 75 Fed. Reg. 53,203 (Aug. 31, 2010)). Kidney cancer is not included on such list and the Secretary of VA has specifically determined that a presumption of service connection for that disability, based on in-service exposure to herbicides, is not warranted. See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41,442 (Aug. 8, 1996); 64 Fed. Reg. 59,232 (Nov. 2, 1999); 67 Fed. Reg. 42,600 (June 24, 2002); 68 Fed. Reg. 27,630 (May 20, 2003); 72 Fed. Reg. 32,395 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010). However, notwithstanding the limits of the presumptive provisions, the Federal Circuit Court has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Further, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service records reflect that he served as a parachute rigger in Vietnam from January 1966 to April 1967. As noted above, on the basis of this service, he is presumed to have been exposed to herbicides. The Veteran also has testified that he witnessed the spraying of herbicides in service, completed assignments in areas that had been recently sprayed, and did not have any post-service chemical exposures. Service treatment records do not reflect any diagnosis of, or treatment for, diseases of, or injuries to, either kidney. Subsequent to service, the Veteran was treated in July 1995 for "what was felt to be a mid-third right ureteral calculus." Private hospital notes reflect that was the Veteran's first incidence of any calculus. In April 1999 he was treated for right flank pain and physicians discovered a right renal calculus as well as a right kidney mass, both of which required surgical removal. A right radical nephrectomy was performed at a private hospital and subsequent pathology revealed that the mass was a kidney carcinoma. The private hospital notes reflect no family history for renal disease, but indicated a family history of cancer. The Veteran wrote to VA in May 1999 and attested that he had been exposed to Agent Orange while on active duty and had not been exposed to any toxic chemicals prior to, or after, service. A March 2002 VA treatment note reflects that his family history of cancer was limited to cancers of the throat and lung experienced by his parents and attributed to smoking. In May 2007, the Veteran's private physician wrote to VA, stated that he had treated the Veteran for his right kidney malignancy, and enclosed histology reports identifying the malignancy as a renal cell adenocarcinoma, clear cell type, grade 2. The Veteran wrote again to VA in August 2007 and contended that his renal cell adenocarcinoma resulted from his in-service exposure to herbicides. The Veteran's private physician wrote to VA in May 2008 and opined that "Agent Orange [] is a potential etiology of his cancer." In July 2008, the Veteran's private physician wrote again to VA and stated that in-service exposure to Agent Orange was "as likely as not [the] etiology of his tumor." At that time, the Veteran also submitted a copy of a classified VA report titled "Report to the Secretary of the Department of Veterans Affairs on the Association between Adverse Health Effects and Exposure to Agent Orange." The report states that the author had reviewed scientific literature, with the assistance of independent scientific experts, and had determined that "it is at least as likely as not that there is a relationship between exposure to Agent Orange and the following health problems: [...] kidney cancer." VA afforded the Veteran an examination in April 2009. The examiner noted review of the claims file and commented on the Veteran's presumed exposure to herbicides based on his service in Vietnam. The examiner noted that renal cancer was not one of the conditions that had been accepted by VA as likely caused by exposure to Agent Orange and stated that he was not aware of any new research supporting a link between such exposure and such cancer. However, the examiner also noted that the delayed development of the Veteran's tumor did not contradict an etiological relationship to herbicide exposure because other cancers that VA has recognized as resulting from such exposure also have significantly delayed onset. The examiner noted that he did not know if the Veteran had any other chemical exposures or a family history of renal disease and, without "clear cut scientific evidence linking Agent Orange exposure with renal cell carcinoma" could not say, without resort to speculation, whether such an etiological connection was likely. The Veteran testified before the below signed Veterans Law Judge in December 2009. At that time, he again attested that he had been exposed to herbicides while on active duty, had no other chemical exposures, and, based on conversation with his physician, believed that his kidney cancer was the result of Agent Orange exposure. In April 2011, VA afforded the Veteran another examination. The 2011 examiner noted review of the entire claims file and physical examination of the Veteran. The examiner summarized the Veteran's treatment history and observed that he had undergone a right radical nephrectomy in April 1999 to treat cancer. Like the April 2009 examiner, the 2011 examiner stated that she could not resolve whether or not the Veteran's renal cancer was related to in-service exposure to herbicides without resort to speculation. However, the 2011 examiner expressly observed that the Veteran did not have a family history of renal cell carcinoma or any chemical exposures other than in-service exposure to herbicides. The examiner reported that she had reviewed the prior VA examination report, the Veteran's private physician opinions, and the research article (classified VA report) the Veteran had submitted. She explained that although Agent Orange was not recognized by VA as causing renal cancer, the Veteran did not appear to have any other risk factors for such cancer and his delayed development of kidney cancer was similar to delayed onset of other cancers that had been linked to Agent Orange exposure. The Board notes that the only two medical opinions of record that include rationale are the VA opinions. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). However, both of those examiners concluded that they could not render an opinion without resort to speculation and the Board notes that opinions that are speculative in nature do not provide a sufficient basis upon which to support a claim. 38 C.F.R. § 3.102; see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as 'could have been' is not probative); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link is too general and inconclusive); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of 'may' also implies 'may or may not' and is too speculative to establish a causal relationship). Although the Veteran's private physician wrote medical opinions stating that Agent Orange was, as likely as not, the cause of his kidney cancer, the physician did not provide any rationale for that opinion except the observation that the Veteran had been exposed to Agent Orange while serving in Vietnam. The Board notes that the private physician who wrote the opinions is the same physician who treated the Veteran for his 1995 renal calculus and for his renal cell adenocarcinoma in 1999 - as such, the opinions were based on full knowledge of the pertinent medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (a physician should have information regarding relevant case facts). However, as the physician did not provide any explanation, or cite to any medical authority, for the conclusion that Agent Orange exposure could result in kidney cancer, this rationale is too conclusory to constitute the only basis upon which the Board can rely. Allday v. Brown, 7 Vet. App. 517 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (the examiner is required to provide a rationale for his opinions in order to facilitate review by VA and appellate courts). Nevertheless, as noted above, the Veteran also has submitted a research article to VA that correlates exposure to Agent Orange to increased risk of kidney cancer. Moreover, both the 2009 and 2011 VA examiners indicated that the delayed onset of the Veteran's kidney cancer was similar to the delayed onset of other cancers that VA regulations indicate are caused by herbicide exposure. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993); also see Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The Board finds the opinion of the Veteran's private physician, read in combination with the research evidence he submitted as well as the observations of the VA examiners as to patterns of cancer development, both competent and probative. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that, with regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact). Although additional medical inquiry could be conducted, under the benefit-of-the-doubt rule, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the claimant shall prevail. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). As the claims file does not contain any conclusive evidence to the contrary, the Board finds that the evidence of record is sufficient for a determination as to the issue of service connection. 38 C.F.R. § 3.304(c). Therefore, service connection for removal of the right kidney due to cancer, claimed as the result of in-service exposure to herbicides, is warranted. ORDER Service connection for loss of right kidney due to cancer is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs