Citation Nr: 1635334 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 13-20 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from May 1966 to March 1970. He died in December 2008. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant requested a hearing before the Board. The requested hearing was conducted in February 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2016, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA). See 38 C.F.R. § 20.901 (2015). A VHA opinion was received in June 2016. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Appellant's case. Accordingly, any future consideration of this Appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran died in December 2008; his cause of death was metastatic renal cell cancer. 2. The Veteran is presumed to have been exposed to herbicides during service. 3. Resolving all doubt in the Appellant's favor, the Veteran's renal cell cancer was causally or etiologically due to exposure to herbicides during service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5103, 5103A, 5107 (West 2014), 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to Service Connection for the Cause of the Veteran's Death The Appellant seeks Dependency and Indemnity Compensation (DIC) through a claim to establish service connection for the Veteran's death. The Veteran died in December 2008. The cause of death was metastatic renal cell cancer. See December 2008 Death Certificate. The Appellant contends that the Veteran's renal cell cancer was due to his exposure to herbicides during service. DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). For the purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a Veteran who, during active military, naval or air service, served in the Republic of Vietnam between January 1962 and May 1975 shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. 38 C.F.R. § 1116 (f). The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309 (e). The Veteran's service records show he served in Vietnam from June 1968 to June 1969. Therefore, the Veteran is presumed to have been exposed to herbicides. Renal cell cancer is not a listed presumptive disease associated with herbicide exposure; however, service connection can still be established on a direct basis. Stefl v. Nicholson, 21 Vet App 120 (2007). The Veteran was diagnosed as having metastatic renal cell cancer in approximately September 2008. To support the contention that the Veteran's renal cell cancer was related to his herbicide exposure, the Veteran's treating physician submitted a medical opinion. In September 2008, the physician opined that the Veteran's kidney cancer was more likely than not caused by exposure to herbicides while in the military. In October 2010, the same physician submitted a statement, stating it was "possible" that herbicides were a contributing factor in the Veteran's development of kidney cancer. As these statements submitted indicated that there might be a link between herbicide exposure and renal cancer, the Board obtained a VHA opinion in June 2016. After reviewing the claims file, the VA medical expert noted that the most recent update from the National Academy of Sciences had found insufficient evidence to link kidney cancer to herbicide exposure. The specialist also noted data from the VA Medical Center in Shreveport, Louisiana indicating that there might be a link between Agent Orange and kidney cancer in Veterans exposed to herbicides in Vietnam; and a review by the American Cancer Society of several national and international studies, and that there had been no "definite" link between Agent Orange and kidney cancer. While the VHA expert noted that there has been no "definite" link identified between exposure to herbicides and kidney cancer, the Appellant need only show that it is at least as likely as not that a relationship exists, and the specialist's statement that new data indicates that there may be a link between Agent Orange and kidney cancer in Vietnam Veterans implies a possible relationship. The term "definite" implies that the physician was requiring certainty. See Webster's New World College Dictionary (20100. Also of importance, the June 2016 VHA specialist did seem to recognize some degree of likelihood that there was a link between herbicide exposure and kidney cancer. He was just unable to express that likelihood in terms that correspond to those used in adjudicating claims for veterans' benefits. Moreover, in examining the other opinions, the Board notes that the Veteran's treating physician at a specialized cancer treatment center, opined on two occasions that there was a causal link between the Veteran's exposure to herbicides during service and his renal cancer. Accordingly, although the Secretary has not determined that a sufficient basis exists to provide service connection for renal cell cancer on a presumptive basis based on exposure to herbicides during service, the Board find that the opinions provided by the Veteran's private physician, together with the statement from the VHA specialist that new data indicates there may be a link between Agent Orange and kidney cancer, are sufficient to place the issue in relative equipoise. Resolving reasonable doubt in the Veteran's favor; service connection for the cause of death, as due to exposure to herbicides, is therefore warranted. ORDER Entitlement to service connection for the Veteran's cause of death is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs