Citation Nr: 1333663 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-16 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for renal cell carcinoma, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for liver cancer, to include as secondary to Agent Orange exposure. 3. Entitlement to service connection for pancreatic cancer, to include as secondary to Agent Orange exposure. 4. Entitlement to service connection for adrenal gland cancer, to include as secondary to Agent Orange exposure. 5. Entitlement to service connection for mouth cancer, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In April 2013, the Veteran and his spouse testified at a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. In June 2013, the Board remanded the claims for additional development. The case has been returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. The Veteran served in a unit that operated in or near the Korean demilitarized zone (DMZ) between April 1968 and August 1971. The Veteran is presumed to have been exposed to herbicides, including Agent Orange, as a result of that service. 2. The Veteran has been diagnosed with renal cell carcinoma that metastasized to the liver, pancreas, adrenal gland, and mouth. The Veteran does not have primary cancer diagnoses of the liver, pancreas, adrenal gland, or mouth. 3. Renal cell carcinoma initially manifested many years after service discharge. The preponderance of the evidence indicates that it is not causally related to service, to include Agent Orange exposure therein. CONCLUSIONS OF LAW 1. Metastatic renal cell carcinoma was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Metastases in the liver, pancreas, adrenal gland, and mouth were not incurred in or aggravated by service, nor are they secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Prior to reaching the merits of this appeal, the Board must address VA's duties to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the VCAA notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is established. Id. at 486. VCAA notice must generally be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in January 2011 of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims and as warranted by law, by obtaining a VA medical opinion. In June 2013, the Board remanded the claims, in part, to assist the Veteran in obtaining private treatment records from the Mayo Clinic. Later that month, the Agency of Original Jurisdiction (AOJ) requested that the Veteran complete and return a VA Form 21-4142, Authorization and Consent to Release Information, so that it could obtain his treatment records from the Mayo Clinic. Because the Veteran failed to respond, no further efforts were taken to obtain these records. In accordance with the Board's remand, the AOJ also obtained the Veteran's outstanding VA treatment records since June 2011 and arranged for a medical review and opinion by a VA physician in July 2013. The Board directed the medical examination or review to be conducted by a VA oncologist; however, the medical report reflects that reviewer specialized in internal medicine and psychiatry. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998). In this case, however, the Board finds that the VA physician's expertise in internal medicine is sufficient to answer the questions in this case. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board). No argument has been made and no evidence has been presented by the Veteran that the VA physician was not qualified to render the requested opinion. The July 2013 medical report contains a detailed list of relevant evidence and factors that were considered and the VA physician provided supporting rationale for her opinion. For these reasons, the Board finds that the AOJ has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under where Board's remand instructions were substantially complied with). In addition, the Veteran and his spouse had the opportunity to testify in support of his claims during an April 2013 videoconference hearing. During the hearing, the undersigned explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the duties a Veterans Law Judge or an Acting Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the issue or by neglecting to suggest the submission of evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his videoconference hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis The Veteran alleges that his various cancer diagnoses are secondary to Agent Orange exposure during his military service in the Korean DMZ. As will be explained below, although it is presumed the Veteran was exposed to Agent Orange during service, the preponderance of the evidence weighs against finding a causal relationship between his current disability and Agent Orange exposure. Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury, or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who, during active military, naval or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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)(iv). The Veteran's military personnel records reflect that he served with the 1st Battalion, 17th Infantry in Korea from March 1967 to July 1968. The Department of Defense has identified this unit as one that may have been exposed to herbicides while serving along the DMZ. See VA Adjudication Procedure Manual, M21-1MR, IV.ii.2.C.10.p (Feb. 24, 2011). Therefore, it is presumed that the Veteran was exposed to herbicides (including Agent Orange) during his service along the Korean DMZ. As will be discussed below, the Veteran was diagnosed with renal cell carcinoma, which metastasized to the palate of his mouth, adrenal gland, pancreas, and liver. Metastatic renal cell carcinoma is not among those diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002); 75 Fed. Reg. 81332-81335 (2010). The Board notes, however, that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence reflects that the Veteran presented with a lesion of the hard palate in May 1998; tests revealed metastatic renal cell carcinoma. Renal cell carcinoma was found in the right kidney and the Veteran underwent a nephrectomy. He was disease-free until October 2000 when a recurrence in the left adrenal gland was discovered. He underwent an adrenalectomy and pathology confirmed renal cell carcinoma. He had a recurrence in the left adrenal bed in 2008. In January 2010, a routine CT scan revealed suspected metastases in the liver, right adrenal gland, and pancreas. It was determined that he was not a surgical candidate and he has been receiving treatment and palliative care from VA since 2010. The Veteran submitted a copy of a May 1990 report from Admiral Zumwalt, who, according to the report, was appointed as special assistant to VA's Secretary to assist him in determining whether there was a statistic association between exposure to Agent Orange and specific adverse health effects. In that report, he stated that after reviewing the scientific literature related to health effects of Vietnam Veterans exposed to Agent Orange as well as other studies, he concluded that there was adequate evidence for the Secretary to reasonably conclude that "it is at least as likely as not" that there is a relationship between exposure to Agent Orange and kidney cancer, among other various medical conditions. During the April 2013 Board hearing, the Veteran and his wife both testified as to the reasons they believed his kidney cancer was related to Agent Orange exposure. The Veteran's wife, who is a nurse, explained that the kidney is one of our filtering systems and would be involved in filtering out Agent Orange. She expressed puzzlement as to why certain conditions were presumed associated with Agent Orange exposure, while kidney cancer was not. Hearing Transcript at 9-10. She said she spoke to a doctor at the Mayo clinic who treated the Veteran and believed his kidney cancer could possibly be related to Agent Orange, but doctor refused to provide a written opinion. Hearing Transcript at 4, 11. A medical opinion was obtained from a VA physician in July 2013. The physician reviewed the claims file, relevant medical literature, and considered the Veteran's lay assertions. She opined that the Veteran's metastatic renal cell carcinoma could not be attributed to in-service herbicide exposure or any other aspect of his active military service. She further opined that the claimed liver cancer, pancreatic cancer, adrenal gland cancer, and mouth cancer were not correct diagnoses but were presumed metastatic renal cell carcinoma in each of these organs. In this case, the Veteran has demonstrated current disability and in-service incurrence of an injury (Agent Orange exposure). Therefore, two elements of direct service connection have been established. The remaining question (third element) is whether there is a causal relationship or nexus between the Veteran's current metastatic renal cell carcinoma and exposure to Agent Orange during service. The Board acknowledges that there is conflicting evidence regarding the question of nexus in this case. In such circumstances, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; 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, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In considering all of the evidence of record, the Board finds that the most probative evidence weighs against the Veteran's claims for service connection. In particular, the Board finds the July 2013 VA examiner's opinion that the Veteran's metastatic renal cell carcinoma is not attributable to in-service herbicide exposure, or any other aspect of his service, highly probative. The physician reviewed the claims file and provided a detailed list of the relevant evidence. She also considered the lay statements, hearing testimony, and Admiral Zumwalt's May 1990 report. She outlined the various risk factors regarding renal cell carcinoma, including prevalence in men, cigarette smoking, hypertension, and obesity. She noted that renal cell carcinoma had not been linked to occupational exposure to cadmium, asbestos, or petroleum by-products despite a great deal of research. Regarding Admiral Zumwalt's 1990 report, she noted that the author relayed a possible causal link between Agent Orange and the subsequent development of kidney cancer, but that this was not supported by the bulk of the current pertinent medical literature. She also noted that while the Admiral was highly educated, he did not have any medical training. She noted that a current search of the New England Journal of Medicine, PubMed, and Medline failed to find any credible medical evidence of a link between exposure to Agent Orange and renal cell carcinoma. She noted that the Veteran's greatest risk factors for the development of renal cell carcinoma were his smoking history (at least 35 pack years including current 1 pack per day), his essential hypertension, his past mild obesity, male gender, age, Caucasian ethnicity, and his United States citizenship. Regarding the Veteran's claimed liver, pancreatic, adrenal, and mouth cancer, the VA examiner opined that these were presumed metastatic renal cell carcinoma. In other words, the Veteran's renal cell carcinoma metastasized to the mouth, liver, pancreas, and adrenal gland. The examiner reiterated that the medical evidence did not support a relationship between renal cell carcinoma and Agent Orange exposure. As noted, the Board finds the July 2013 VA examiner's opinion highly probative. The physician reviewed the claims file, relevant medical history, lay assertions, and provided a detailed rationale for her opinions, which were supported by medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board acknowledges the Veteran's August 2013 letter in which he argued that the VA examiner erroneously indicated that he had a 35-pack year smoking history. He stated that he quit smoking for 28 years. The Board notes that there is a discrepancy in the record as to the Veteran's smoking history that was well-documented by the VA examiner. She indicated that an April 2010 VA outpatient treatment record noted that the Veteran had a 1-pack per day smoking history for 35 years. She also indicated that a February 2008 private treatment record noted that the Veteran had a 20-pack year history and that he quit for 28 years but had recently restarted. Although medical opinions based on an inaccurate factual premise lack probative value, a medical report must be read as a whole. Monzingo v. Shinseki, 26 Vet. App. 97 (2012); Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Here, it is clear that the examiner was merely listing the Veteran's risk factors for renal cell carcinoma, which included cigarette smoking among other things. She did not opine that cigarette smoking was the cause of his cancer. When the totality of the VA examiner's opinion is considered, the Board does not find that the discrepancy in the length and severity of the Veteran's smoking history undermines the essential conclusion that his renal cell carcinoma is not attributable to Agent Orange exposure. Regarding Admiral Zumwalt's report, the Board notes that the conclusions do not address the Veteran specifically. Furthermore, VA, in conjunction with the National Academy of Sciences (NAS), has convincingly reached conclusions contrary to those of Admiral Zumwalt. NAS, in Update 2008, determined that there was inadequate or insufficient evidence to determine whether an association exists between renal cancer (kidney and renal pelvis) and herbicide exposure. 75 Fed. Reg. 81,332, 81,333-4 (Jun. 8, 2010). This category was defined to mean that the available studies were of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association with herbicide exposure. Id. Hence, while Admiral Zumwalt concluded that there was adequate evidence of a relationship between kidney cancer and herbicide exposure, NAS has concluded that insufficient evidence exists. The Board finds the conclusions reached by NAS more probative as this institution has expertise in this area and was specifically tasked by VA, at the direction of Congress, to review and summarize the scientific evidence. The Board has also considered the medical opinion provided by the Veteran's wife, who is a nurse, that renal cell carcinoma is or should be associated with Agent Orange exposure because the kidney is one of the body's filtering systems. The Board finds her statements competent and credible, but less probative than the opinion rendered by the VA examiner. In this regard, the Board points out that the VA examiner provided a detailed rationale and reviewed the relevant medical literature. The VA examiner is also a physician who specializes in internal medicine and therefore has more training and expertise in this area than the Veteran's wife. Finally, the Board has considered the Veteran's sincere belief that his metastatic renal cell carcinoma is related to Agent Orange exposure in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the etiology of his cancer, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Even assuming the Veteran's lay assertions regarding etiology were competent, the Board finds the VA examiner's opinion discussed in detail above is more probative. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for metastatic renal cell carcinoma. Because service connection is denied for renal cell carcinoma, service connection for the resulting metastases in the liver, pancreas, adrenal gland, and mouth is not warranted. The benefit of the doubt doctrine is not for application, and the claims are denied. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for metastatic renal cell carcinoma is denied. Entitlement to service connection for liver cancer is denied. Entitlement to service connection for pancreatic cancer is denied. Entitlement to service connection for adrenal gland cancer is denied. Entitlement to service connection for mouth cancer is denied. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs