Citation Nr: 1729711 Decision Date: 07/27/17 Archive Date: 08/04/17 DOCKET NO. 99-08 585A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for right renal cell carcinoma, claimed as due to exposure to herbicide agents. 2. Entitlement to service connection for renal cell carcinoma, status post right nephrectomy, claimed as due to exposure to herbicide agents. 3. Entitlement to service connection for a spinal cord disorder other than peripheral neuropathy, claimed as due to exposure to herbicide agents. 4. Entitlement to service connection for a psychiatric disorder other than post-traumatic stress disorder (PTSD), to include as secondary to service-connected disabilities. 5. Entitlement to service connection for adenocarcinoma of the colon, claimed as due to exposure to herbicide agents or as secondary to service-connected diabetes mellitus. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran had active service from May 1964 to May 1966, which includes service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from April 1998, October 2005, and May 2007 rating decisions. In the April 1998 rating decision, the RO, inter alia, denied the Veteran service connection for right renal cell carcinoma and for peripheral neuropathy (claimed as a spinal cord disorder), each claimed as due to exposure to herbicide agents, as well as denied service connection for a psychiatric disorder. The Veteran filed a notice of disagreement (NOD) in October 1998, and the RO issued a statement of the case (SOC) later that month. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 1999. In March 2004, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. After completing the requested action, the AMC reopened the claim for service connection for right renal cell carcinoma, but denied that claim on the merits, as well as continued to deny the remaining claims (as reflected in a November 2005 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration. During the course of the appeal, in the October 2005 rating decision, the RO denied the Veteran service connection for adenocarcinoma of the colon as secondary to service-connected diabetes mellitus. The Veteran filed an NOD in November 2005, and the RO issued an SOC in May 2006. The Veteran filed a VA Form 9 in June 2006. In the May 2007 rating decision, the RO denied the Veteran a TDIU. The Veteran filed an NOD in June 2007, and the RO issued an SOC in December 2007. The Veteran filed a VA Form 9 in January 2008. In February 2008, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In December 2008, the Board denied the claim for service connection for a spinal cord disorder, and remanded the other claims on appeal to the RO, via the AMC, for additional development. The Veteran appealed the Board's denial of service connection for a spinal cord disorder to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court granted the joint motion for remand (Joint Motion) filed by representatives for both parties, vacating the portion of the Board's decision which denied service connection for a spinal cord disorder, and remanding that claim to the Board for further proceedings consistent with the Joint Motion. After completing the requested development concerning the petition to reopen the claim for service connection for right renal cell carcinoma as due to exposure to herbicide agents, the claim for service connection for a psychiatric disorder other than PTSD, the claim for service connection for adenocarcinoma of the colon, and the claim for a TDIU, the AMC continued to deny the claims (as reflected in a December 2009 SSOC) and returned these matters to the Board for further appellate consideration. In September 2010, the Board again remanded the matters on appeal to the agency of original jurisdiction (AOJ) for further development. After completing the requested development, the RO continued to deny each claim (as reflected in a June 2016 SSOC), and returned the matters to the Board for further appellate consideration. As regards characterization of the matters on appeal, the Board points out that, regardless of the AMC's actions on the claim involving right renal cell carcinoma, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Hence, the Board has characterized this matter as a request to reopen (as reflected on the title page). The Board further notes that, in October 2006, the Veteran filed a claim for service connection for PTSD. That claim has not yet been adjudicated. However, given the different assertions between the claim for service connection for a psychiatric disorder on appeal and the claim for service connection for PTSD, the Board finds that the claims are not inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, the Board will proceed with consideration of the claim for service connection for a psychiatric disorder other than PTSD (as reflected on the title page). In addition, the Board notes that service connection for peripheral neuropathy of the right and left lower extremities was granted in a January 2004 rating decision, and that, during the course of this appeal, in a January 2007 rating decision, the RO granted service connection for peripheral neuropathy of the right and left upper extremities. Thus, the Board has characterized the Veteran's claim involving service connection for a spinal cord disorder as one for other than peripheral neuropathy (as reflected on the title page). As regards the matter of representation, the Board notes that, while the Veteran previously was represented by Vietnam Veterans of America, in February 2010, the Veteran granted a power-of-attorney in favor of attorney Joseph R. Moore with regard to the claims on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board has recognized the change in representation. The Board notes that the Veteran's attorney submitted a private medical opinion from M.M. Krem, MD, Ph.D. to the Board in May 2017. The Veteran, through his attorney, waived initial consideration of the evidence by the AOJ. See 38 C.F.R. § 20.1304 (2016). Also, while the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. The Board's disposition of the claim for service connection for a spinal cord disorder other than peripheral neuropathy, as well as the decisions on the remaining service connection claims on appeal, are forth below. The claim for a TDIU is addressed in the remand following the order; this matter is being remanded to the AOJ for further action. VA will notify the Veteran if further action, on his part, is required. FINDINGS OF FACT 1. In an April 2017 statement, prior to the issuance of an appellant decision, the Veteran withdrew from appeal the issue of entitlement to service connection for a spinal cord disorder other than peripheral neuropathy. 2. All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 3. Most recently, in an October 1994 rating decision, the RO denied the claim for service connection for right renal cell carcinoma; although notified of the denial, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 4. Pertinent to the claim for service connection for right renal cell carcinoma, additional evidence received since the RO's October 1994 decision includes evidence that is neither cumulative nor redundant of the evidence of record at the time of that decision, bears directly and substantially upon the matter, and which is so significant that it must be considered in order to fairly decide the merits of the claim. 5. As the Veteran served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, to include Agent Orange, during such service. 6. Although renal cell carcinoma was not shown in service, and is not among the diseases recognized by VA's Secretary as etiologically-related to exposure to herbicide agents, competent, probative medical opinion evidence on the question of whether the Veteran's currently diagnosed renal cell carcinoma is the result of his exposure to Agent Orange in Vietnam is, at least, in relative equipoise. 7. Although adenocarcinoma of the colon was not shown in service, and is not among the diseases recognized by VA's Secretary as etiologically-related to exposure to herbicide agents, competent, probative medical opinion evidence indicates that the Veteran's currently diagnosed adenocarcinoma of the colon is the result of his exposure to Agent Orange in Vietnam. 8. Competent, probative medical evidence on the question of whether the Veteran's currently diagnosed depression is proximately due to service-connected disabilities is, at least, in relative equipoise. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the claim for service connection for a spinal cord disorder, other than peripheral neuropathy, are met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The October 1994 rating decision in which the RO denied service connection for right renal cell carcinoma is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 20.302, 20.1103 (2016). 3. As evidence received since the RO's October 1994 rating decision is new and material, the requirements for reopening the claim for service connection for right renal cell carcinoma are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (in effect prior to August 29, 2001). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for renal cell carcinoma, status post right nephrectomy, are met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 5. The criteria for service connection for adenocarcinoma of the colon are met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 6. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for depression, as secondary to service-connected disabilities, are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim Dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In an April 2017 statement, prior to the issuance of an appellate decision, the Veteran withdrew from appeal the issue of entitlement to service connection for a spinal cord disorder, other than peripheral neuropathy. Hence, there remain no allegations of error of fact or law for appellate consideration with regard to this claim. Accordingly, the Board does not have jurisdiction to review the appeal as to this matter, and it must be dismissed. II. Due Process Considerations for Claims Decided At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). Given the Board's favorable actions on the request to reopen the claim for service connection for right renal cell carcinoma, the underlying claim for service connection for renal cell carcinoma, and the claims for service connection for adenocarcinoma of the colon and a psychiatric disorder other than PTSD, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. III. Analysis A. Petition to Reopen As explained in more detail below, a claim for service connection for renal cell carcinoma was previously considered and denied. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). In this case, the Veteran filed a request to reopen his previously denied claim for service connection for renal cell carcinoma in December 1997. For petitions to reopen filed prior to August 29, 2001, 38 C.F.R. § 3.156 (a) provides that "new and material evidence" is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. [Parenthetically, the Board notes the regulations implementing the VCAA include a revision of 38 C.F.R. § 3.156. However, that revision applies only to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156 (a)). Given the date of claim culminating in the instant appeal, the Board will apply the version of 38 C.F.R. § 3.156 (a) in effect prior to August 29, 2001.] In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In an October 1994 rating decision, the RO denied service connection for right renal cell carcinoma status post radical nephrectomy on the basis that there was no evidence that the disease was incurred in service or manifested to a compensable degree during the one year period following the Veteran's separation from service. The Veteran was notified of the October 1994 decision by way of a letter dated in November 1994, he did not appeal this decision, and new and material evidence was not received during the one year appeal period following the notice of the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Furthermore, no additional service records have been received at any time pertinent to the previously disallowed claim for service connection for renal cell carcinoma, warranting readjudication of the claim. See 38 C.F.R. § 3.156(c). As such, the October 1994 decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Hence, service connection for renal cell carcinoma may only be reopened and reviewed if new and material evidence is received with respect to this claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). Pertinent new evidence received since the October 1994 denial includes a July 2015 VA hematology and oncology note and the April 2017 medical opinion from Dr. Krem. This additional evidence reflects that the Veteran has been diagnosed as having renal cell cancer metastasis and that his current renal cell carcinoma is related to his presumed exposure to herbicide agents in service. Hence, the additional evidence bears directly and substantially upon the matter of the Veteran's entitlement to service connection for renal cell carcinoma and is so significant that it must be considered in order to fairly decide the merits of the claim because it suggests that the Veteran has current renal cell carcinoma which is related to service. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination). Accordingly, the criteria for reopening the previously denied claim are met. B. Service Connection Service connection may be granted for 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).\ Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Absent affirmative evidence to the contrary, there is a presumption of exposure to certain herbicide agents (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6). Furthermore, 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 C.F.R. § 3.309(e) (2016). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) who develop an identified disease recognized by VA's Secretary as etiologically related to such exposure. Under 38 U.S.C.A. § 1154(a) (West 2014), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson, 581 F.3d at 1313. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. Renal Cell Carcinoma and Adenocarcinoma of the Colon In this case, a November 2004 VA genitourinary examination report, an August 2005 VA discharge note, and the July 2015 VA hematology and oncology note indicate that the Veteran has been diagnosed as having renal cell carcinoma status post right nephrectomy, renal cell cancer metastasis, and adenocarcinoma of the transverse colon. Thus, current renal cell carcinoma and adenocarcinoma of the colon have been demonstrated. The Veteran contends that his current renal and colon cancer are the result of his exposure to herbicide agents in service. His Certificate of Release or Discharge from Active Duty form (DD Form 214) confirms that he served in Vietnam for 8 months and 6 days. As the Veteran served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Moreover, although renal cancer and colon cancer were not shown in service, and are not among the diseases recognized by VA's Secretary as etiologically-related to herbicide agent exposure, competent, probative evidence indicates that the Veteran's currently diagnosed renal cell carcinoma status post right nephrectomy and adenocarcinoma of the colon are each, at least partially, the result of his exposure to Agent Orange in Vietnam. The examiner who conducted the November 2004 VA genitourinary examination opined that the Veteran's renal cell carcinoma was not likely ("less likely than not") related to his exposure to Agent Orange in service. This opinion was based upon a review of medical literature and the fact that renal cell carcinoma was not included among the list of disabilities that are presumptively service-connected based on exposure to Agent Orange. In an April 2017 letter, Dr. Krem (a physician who is board certified in Internal Medicine and Medical Oncology and who served as an attending oncologist for oncology patients in VA hospitals) reported that he reviewed peer-reviewed and published medical literature and the Veteran's entire claims file. He opined that it was likely ("more likely than not") that Agent Orange exposure caused the Veteran's colon cancer. Dr. Krem reasoned that Agent Orange is a mixture of dioxin compounds that belong to the class of chlorophenoxy herbicides and that the use of these herbicides, including Agent Orange, is associated with numerous types of cancer in epidemiologic studies. The most potent and carcinogenic of the dioxins is 2,3,7,8-Tetrachlorodibenzodioxin (TCDD) and this dioxin contaminated Agent Orange formulations used in Vietnam. The Institute of Medicine (IOM) has concluded that there is "inadequate or insufficient evidence" linking Agent Orange to colon cancer. By contrast, most hematologic neoplasms (non-Hodgkin lymphoma, Hodgkin lymphoma, multiple myeloma, and leukemias) are officially recognized as linked to Agent Orange. Although the IOM designations are recognized by VA as official policy, and colon cancer is not officially recognized as linked to Agent Orange, published epidemiology studies suggest that Agent Orange and similar dioxin-based herbicides are linked to colorectal cancer. In particular, Dr. Krem identified a study of New Zealand workers exposed to phenoxy herbicides and dioxin which revealed that sprayers had a 1.94-fold increased risk of colon cancer mortality. Supporting the study's validity, hematopoietic cancer mortality was also increased in exposed workers. A study of Italian residents exposed to dioxin after an industrial accident showed increased hematologic neoplasms and increased gastrointestinal cancer mortality, including rectal cancer. A study of workers assisting in the manufacture of dioxin-containing phenoxy herbicides showed increased rectal cancer mortality, along with increased hematopoietic cancers. Also, a study of Korean War veterans found increased incidences of colon cancer in non-commissioned officers. These veterans were also exposed to Agent Orange, and several IOM-recognized cancers (lung, prostate, and T-cell non-Hodgkin's lymphoma) were also increased in incidence. Moreover, while not all studies have found a linkage between Agent Orange and colorectal cancer, data on dioxin blood levels suggests that nearly all major epidemiologic studies of Agent Orange were underpowered to detect the common cancers potentially caused by dioxin. This undermines the impact of studies of veterans that did not find a linkage between Agent Orange and cancer. There is laboratory evidence that supports dioxin-based causation of colorectal cancer. Molecular studies show that Agent Orange activates the aryl hydrocarbon receptor (AhR), which is an oncogenic regulator. In the basal, non-activated state, AhR appears to function as a tumor suppressor, but the presence of foreign ligands (such as TCDD) has a pro-carcinogenic effect. Keratinocyte growth factor acts through the AhR to promote cell proliferation in colon cancer cell lines. Furthermore, TCDD itself activates drug transporter genes that lead to resistance of colorectal cancer cells to platinum-based chemotherapy. Thus, dioxin activates molecular programs that promote carcinogenesis and resistance to treatment in colonic cells. Hence, together, the epidemiology and scientific evidence indicate that it is likely ("more likely than not") that Agent Orange causes colonic carcinogenesis and, therefore, caused the Veteran's colon cancer. Dr. Krem also opined in his April 2017 letter that it was likely ("more likely than not") that Agent Orange exposure caused the Veteran's renal cell carcinoma. He explained that although IOM has concluded that there is "inadequate or insufficient evidence" linking Agent Orange to kidney cancers and kidney cancers are not officially recognized as linked to Agent Orange, published epidemiology studies suggest that dioxin-based herbicides are linked to renal cell carcinoma. Since deadly renal cell carcinomas are relatively rare, there is not extensive epidemiologic evidence directly linking veterans' Agent Orange exposure to renal cell carcinoma. However, there are a limited number of studies linking herbicides and dioxins to renal cell carcinoma in military and non-military settings. Dr. Krem noted that a review of medical literature revealed that a study of more than 185,000 Korean War and Vietnam War veterans examined the consequences of exposure to military herbicides. The study found that in non-commissioned officers and officers, the risk of kidney cancer was higher, with standardized incidence ratios of 1.33 and 1.39 compared with the general population. A case-control study from Canada showed an association of herbicides with kidney cancer. Herbicides accounted for 131 of 691 kidney cancer cases in the study and in men specifically, herbicides increased the odds ratio for kidney cancer to 1.6, which was statistically significant. There was a dose-response relationship between exposure and risk, which further supports an association. A Danish case-control study also showed an increased risk of renal cell carcinoma in patients exposed to herbicides, with an odds ratio of 1.7, although the association was statistically significant only in those who had prolonged exposure (more than 20 years). A study of cancer mortality in wheat-producing states in the United States showed that the degree of use of chlorophenoxy herbicides correlated with cancer rates, including kidney cancers in men. The standardized mortality ratio for kidney cancer in men was greater than 7. A study of employees exposed to TCDD in 1953 did not report specifically on incidences of cancer subtypes, but it reported that occurrences of "kidney and metabolic disorders" were unremarkable. Also, of five epidemiologic studies found in medical literature, four supported some type of association between herbicides and kidney cancer. One of the supporting studies consisted of Vietnam War veterans exposed to Agent Orange. Dr. Krem further explained that laboratory evidence also supports the role of dioxin herbicides in kidney carcinogenesis. As previously discussed, molecular studies show that Agent Orange activates the AhR, which is an oncogenic regulator. Specifically, TCDD induces transcription of the cancer-causing genes (oncogenes) fos and jun through the AhR, and also independently of the AhR. Exposure of renal cancer cell lines to TCDD or other ligands of the AhR stimulated metalloproteases (proteins that aid cancer invasiveness) and was associated with more aggressive tumors. Furthermore, activation of the AhR was associated with poor prognosis in patients. In laboratory animal studies, exposure to 3,3', 4,4'-tetrochloroazobenzene (TCAB) (a similar compound to TCDD) and TCDD increased kidney weight compared with controls. A separate study of mice genetically altered to have constitutive activation of the AhR, replicating dioxin exposure, resulted in increased kidney size and "slight morphological lesions" of the kidneys. Dr. Krem concluded that, overall, the limited amount of epidemiologic evidence appears to support a causative association between herbicides/Agent Orange and renal cell carcinoma. In addition, laboratory evidence robustly supports dioxin-based causation of renal cell carcinoma. Dioxin activates molecular programs that are prone to promoting cancer in kidney cells. Therefore, Dr. Krem opined that together, the epidemiology and scientific evidence indicates that it is likely ("more likely than not") that Agent Orange causes kidney cancer pathogenesis and, therefore, caused the Veteran's renal cell carcinoma. Furthermore, Dr. Krem explained that colorectal cancer pathogenesis is notable for sequential accumulation of disease-predisposing mutations as normal mucosa transforms to an adenoma and ultimately to an invasive carcinoma. In non-familial cases, malignant transformation takes place over at least 15 to 20 years. Thus, the steps that led to cancer propagation must have occurred 15 to 20 or more years prior to diagnosis. It is highly plausible that the initial insults took place 40 years or more prior to disease presentation. As previously noted, data on dioxin blood levels suggests that nearly all major epidemiologic studies of Agent Orange were underpowered to detect the common cancers potentially caused by dioxin. This undermines the impact of studies in veterans that did not find a linkage between Agent Orange and cancer. Furthermore, studies of the half-lives of dioxin compounds reveal that such compounds persist in the bloodstream for years after exposure. The half-lives of most dioxins range from 5 to 10 years, indicating that exposed individuals undergo continuous, residual carcinogenic effects for years, or even decades, after initial exposure. As cancer pathogenesis typically requires years of onset as mutations accumulate over years and perhaps decades, it would be quite unusual for a service-connected exposure to result in disease manifestations during active service or within one year of discharge. Considering that dioxins persist for decades and that cancer takes at least 15 to 20 years to develop, the time frame for the Veteran's cancer diagnosis is consistent with a service-connected exposure. Based on the known science, it is likely ("as likely as not") that the Veteran's oncologic process initiated during his military service. Given the prolonged exposure to dioxins and the gradual nature of cancer pathogenesis, it was to be expected that the Veteran's renal cell carcinoma and colon cancer would manifest decades after his military service. Dr. Krem also noted that possible risk factors associated with renal cell carcinoma include smoking, hypertension, obesity, cystic kidney disease, hepatitis C virus, a variety of occupational exposures (cadmium, asbestos, and petroleum products), and nephrolithiasis. Alcohol consumption exerts a mild protective effect. In this case, the Veteran does have obesity listed as one of his medical problems, which may have increased his risk. Smoking also may have increased his risk of developing renal cell carcinoma. However, this does not negate the deleterious impact of herbicide exposure in renal cell carcinoma and colorectal cancer pathogenesis. The above list of risk factors is not exhaustive, but it demonstrates that the Veteran does not have any other known identifiable exposures that would have predisposed him to renal cell carcinoma. Lastly, Dr. Krem addressed the opinion of the examiner who conducted the November 2004 VA genitourinary examination. He noted that the specific medical literature reviewed by the examiner was not discussed and that the wording of the opinion was ambiguous. Regardless, several of the studies cited by Dr. Krem which address the link between Agent Orange and renal cell carcinoma had been published in 2004. However, additional studies were published subsequent to 2004 and these studies strengthened the argument for a causative relationship between Agent Orange and renal cell carcinoma. If the November 2004 examiner was referencing the Up to Date database, that database is a reasonable starting point to guide a literature search, but it is a literature aggregator and not encyclopedic. It cannot be used to reliably exclude an exposure. Also, there is no evidence that a primary literature search was performed by the November 2004 examiner and the examiner was an internal medicine physician not boarded in an oncologic discipline. Her opinion does not account for the incubation period/timeline of cancer pathogenesis or discuss any primary (or secondary) medical literature references. The April 2017 opinions from Dr. Krem were provided by a physician with extensive experience in oncology, were based upon a review of medical literature and the Veteran's claims file and reported history, and are accompanied by specific and detailed rationales that are not inconsistent with the evidence of record. Thus, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Significantly, there is no contrary medical opinion indicating that the Veteran's adenocarcinoma of the colon is not related to Agent Orange exposure in service. As for renal cell carcinoma, the opinion of the examiner who conducted the November 2004 VA genitourinary examination was based upon an examination of the Veteran and a review of medical literature and her claims file and reported history, and it is accompanied by a rationale that is not inconsistent with the evidence of record. Hence, the November 2004 opinion does have some probative value. In his April 2017 opinion, however, Dr. Krem specifically addressed the November 2004 opinion, provided reasons for why the opinion was insufficient, and provided a much more detailed and extensive rationale that includes references to specific studies found in medical literature that suggest a relationship between Agent Orange exposure and the development of renal cell carcinoma. At the very least, the Board finds that the collective medical opinion evidence is sufficient to warrant application of the benefit-of-the-doubt doctrine with respect to the claim for service connection for renal cell carcinoma. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the competent, probative evidence of record establishing that the Veteran has current renal cell carcinoma ,status post right nephrectomy, and adenocarcinoma of the colon, and that these disabilities are likely related to his presumed exposure to Agent Orange in service, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, the criteria for service connection are met. 2. Psychiatric Disorder A June 2016 VA primary care treatment note reflects that the Veteran has been diagnosed as having depression. Thus, a current psychiatric disorder has been demonstrated. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for depression, as secondary to service-connected disabilities, is warranted. An October 1998 psychiatric examination report from neuropsychiatrist N.R. Nieves, M.D. documents the Veteran's history of various medical problems, including kidney cancer and lower extremity paresthesias. Dr. Nieves noted that "[a]s a consequence of all these problems [the Veteran] developed in a slow but progressive manner his actual emotional picture. . . ." and that his symptoms included depression. The Veteran was diagnosed as having major depression with psychosis. The examiner who conducted a November 2004 VA psychiatric examination diagnosed the Veteran as having depressive disorder, not otherwise specified (NOS). The examiner opined that it was likely ("more likely than not") that the Veteran's psychiatric disability was related to his kidney disease. There was no specific explanation or rationale provided for this opinion. Furthermore, during an August 2007 VA psychiatric evaluation the Veteran reported that he was concerned about his multiple medical problems (including his bouts with rectal/colon cancer and renal cancer) and that he believed that his depression was secondary to his ailments. The psychiatrist who conducted the August 2007 evaluation concluded that the Veteran was "depressed due to medical incapacitation." A January 2009 VA psychiatry note includes a diagnosis of major depression and the psychiatrist who conducted the evaluation explained that the Veteran was "depressed due to medical incapacitation." Moreover, the psychiatrist who conducted a November 2014 VA psychiatry evaluation concluded that the Veteran remained depressed due to the fact that he was still coping with medical incapacitation due to cancer. The Board points out that the Veteran is service-connected for bilateral peripheral neuropathy of the lower extremities. Also, as explained above, the Board has awarded service connection for renal cell carcinoma and adenocarcinoma of the colon. Although the November 2004 opinion is not accompanied by any specific explanation or rationale, it was nonetheless based upon an examination of the Veteran and a review of his medical records and reported history and it supports a conclusion that the Veteran's current depression is caused, at least in part, by his now service-connected renal cell carcinoma. Moreover, there is no contrary medical opinion indicating that the Veteran's depression is not caused by his service-connected disabilities, and the collective evidence is otherwise sufficient to conclude that his current depression may be caused by service-connected disabilities. Given the evidence of record, the Board finds that, at the very least, the competent, probative evidence is, at least, in relative equipoise on the question of whether the Veteran's current depression is the result of service-connected disabilities. Resolving all reasonable doubt on the medical nexus question in the Veteran's favor, the Board concludes that the criteria for secondary service connection for diagnosed depression are met. ORDER The appeal as to the claim for service connection for a spinal cord disorder other than peripheral neuropathy is dismissed. As new and material evidence to reopen the claim for service connection for right renal cell carcinoma has been received, the appeal as to this matter is granted. Service connection for renal cell carcinoma, status post right nephrectomy, is granted. Service connection for adenocarcinoma of the colon is granted. Service connection for depression, as secondary to service-connected disabilities, is granted. REMAND Given the awards of service connection for the disabilities identified above, the Board finds that the AOJ should again adjudicate the TDIU claim after implementing these awards of service connection, to include the assignment of ratings and effective dates. On remand, the AOJ will have an opportunity to consider, in the first instance, the evidence pertinent to the claim for a TDIU added to the claims file since the last adjudication (notwithstanding any waiver), as well as to consider whether the award of a total (100 percent rating) and special monthly compensation (SMC) renders moot the question of the Veteran's entitlement to a TDIU during any period under consideration (currently, from November 4, 2014). Accordingly, the remaining matter on appeal is hereby remanded for the following: 1. After implementing the awards of service connection for renal cell carcinoma status post right nephrectomy, adenocarcinoma of the colon, and depression as secondary to service-connected disabilities, adjudicate the remaining claim for a TDIU in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication, notwithstanding any waiver), as well as all legal authority. Such adjudication should include consideration of whether the award of a 100 percent rating and SMC renders moot the question of the Veteran's entitlement to a TDIU during any period under consideration. 2. If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs