Citation Nr: 1753372 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-07 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for renal cell carcinoma. 2. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and B.R.H., M.D. ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to August 1972. He died in May 2013. The Appellant is his surviving spouse. She has been substituted for the Veteran for purposes of this appeal. The Appellant appeared at a hearing before the undersigned in March 2017. FINDINGS OF FACT 1. At the time of the Veteran's death, there was a pending service connection claim for renal cell carcinoma. 2. The Appellant filed a claim for accrued benefits as a surviving spouse within one year of the Veteran's death. 3. The Veteran's renal cell carcinoma was the result of a disease or injury in service. 4. Renal cell carcinoma was the immediate cause of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for service connection for renal cell carcinoma have been met. 38 U.S.C. §§ 1110, 5101, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000 (2017). 2. The criteria for entitlement to DIC based on service connection for the Veteran's cause of death have been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran filed a service connection claim for renal cell carcinoma in July 2012. As previously noted, he died in May 2013. The service connection claim remained pending at the time of his death. The Appellant filed an application for accrued benefits within one year of the Veteran's death and has been properly substituted for the Veteran for purposes of processing the claims to completion. See 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. §§ 3.1000 (c), 3.1010(b). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The record clearly establishes the Veteran had renal cell carcinoma prior to his death; therefore, the current disability requirement for his service connection claim has been met. The Veteran claimed his renal cell carcinoma was the result of exposure to herbicide agents during his service in the Republic of Vietnam. The Appellant has maintained this theory of entitlement since the Veteran's death. The Veteran's service personnel records confirm he served in the Republic of Vietnam during the period for which exposure to herbicide agents is presumed, which establishes the in-service injury element of his claim. The only issue that remains is whether there is a nexus between the claimed in-service injury and the current disability. Based on the specific facts of this case, the Board find, after resolving any benefit of the doubt in favor of the Appellant, that it is at least as likely as not the Veteran's renal cell carcinoma was the result of the presumed exposure to herbicide agents in the Republic of Vietnam. In August 2012, the Veteran submitted a positive nexus opinion from a biomedical researcher from the University of Georgia, B.R.H., M.D., which was also endorsed by his treating oncologist, S.M.S., M.D., that indicates the Veteran's renal cell carcinoma was likely the result of exposure to herbicide agents in service. B.R.H., M.D., explained almost all renal cell carcinoma is environmental in origin with less than three percent being attributed to familial causes. B.R.H., M.D., noted exposure to herbicide agents has been linked to increased risk of renal cell carcinoma by several studies and determined there were no other risk factors for renal cell carcinoma present in the Veteran's case. He pointed out the Veteran had no family history of kidney disease, was not obese, did not smoke, maintained exceptional cardiovascular health with no evidence of hypertension, and never suffered a comorbidity that is linked to risk of renal cell carcinoma (tuberous sclerosis, von Hippel-Lindau disease, Birt-Hogg-Dube syndrome, etc.). B.R.H., M.D., further explained the risk arising from herbicide agents was particularly high in the Veteran's case because of his extensive exposure due to his service as a pilot of planes that were used to dispense Agent Orange during the peak years of its use in the Republic of Vietnam. B.R.H., M.D., further noted research has confirmed a link between the Veteran's specific type of renal cell carcinoma (clear cell form) and exposure to herbicide agents. B.R.H., M.D., concluded the confluence of evidence, when coupled with the Veteran's specific history, leaves little doubt that the Veteran's exposure to herbicide agents in the Republic of Vietnam led to the development of his renal cell carcinoma. In September 2012, the Veteran's treating oncologist, S.M.S., M.D., provided an opinion corroborating the August 2012 opinion provided by B.R.H., M.D. In October 2012, B.R.H., M.D., provided a supplemental opinion with a review of medical literature regarding the link between renal cell carcinoma and exposure to herbicide agents, citing ten separate studies that show a possible link between renal cell carcinoma and exposure to herbicide agents. The Veteran's treating oncologist, S.M.S., M.D., endorsed this opinion later the same month. In January 2014, the Appellant submitted a news release from the American Urological Association that explicitly links renal cancer to Agent Orange. The release cites "new data from researchers at the Veterans Affairs Medical Center in Shreveport, LA, indicates that there may be a connection between veterans' in country exposure and subsequent development of renal cancer." The Board acknowledges renal cell carcinoma is not a disease that is presumed to be associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). However, the lack of a presumptive provision regarding a claimed disability cannot be the sole basis for denying a claim when the evidence otherwise establishes service connection is warranted based on proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). Here, there is evidence regarding direct causation that is sufficient to meet the "at least as likely as not" standard. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Further, B.R.H., M.D., appeared as an expert witness at the March 2017 hearing before the undersigned and testified the lack of evidence to support a presumptive provision for renal cell carcinoma is primarily based on the rarity of the disease. B.R.H., M.D., explained renal cell carcinoma is so rare it is difficult to obtain the requisite sample size to establish of study with enough statistical significance to support a presumptive provision. Nevertheless, B.R.H., M.D., reiterated the specific facts of the Veteran's case indicate his renal cell carcinoma was likely the result of exposure to herbicide agents based on the absence of any other risk factors for this Veteran. In sum, the Board finds it is at least as likely as not the Veteran's renal cell carcinoma was the result of the presumed exposure to herbicide agents based on the specific facts of this case. Thus, the Board finds entitlement to service connection for renal cell carcinoma is warranted. II. Entitlement to DIC When any veteran dies from a service-connected disability, the veteran's surviving spouse is entitled to DIC. 38 U.S.C. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran's death certificate indicates renal cell carcinoma was the immediate cause of death. As discussed above, the expert opinions in this case establish renal cell carcinoma is the result of the Veteran's service. Thus, entitlement to DIC based on service connection for the Veteran's cause of death is warranted. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. ORDER Entitlement to service connection for renal cell carcinoma is granted. Entitlement to DIC based on service connection for the Veteran's cause of death is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs