Citation Nr: 1749918 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 13-35 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for kidney cancer, to include as due to in-service exposure to herbicide agents or as secondary to service-connected prostate cancer. 2. Entitlement to an initial compensable rating for erectile dysfunction. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to January 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2013 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In June 2015, the Board remanded the claim for service connection for kidney cancer for further development. It has now returned to the Board. In May 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. Evidence was submitted along with a written waiver of initial consideration by the RO. A transcript of the proceeding is associated with the electronic claims file. The Board notes the July 2017 statement indicating the Veteran's desire to appeal the initial rating assigned for his service-connected prostate cancer. Notably, service connection was granted for prostate cancer and erectile dysfunction in the same February 2013 rating decision. In his April 2013 notice of disagreement, the Veteran very specifically sought to appeal the rating for erectile dysfunction associated with prostate cancer; he did not file a timely notice of disagreement with the rating assigned for prostate cancer. As such, the Board does not have jurisdiction to consider a claim for a higher rating for prostate cancer at this time. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2016). The Board also notes that the Veteran's representative voiced disagreement with a November 2016 rating decision in which service connection for hypertension was denied. See July 18, 2017 Correspondence. The claims file does not contain a notice of disagreement for that issue. As such, the Board does not have jurisdiction to consider it at this time. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has kidney cancer as a result of exposure to herbicides in service or, in the alternative, that his kidney cancer was caused or aggravated by his service-connected prostate cancer. See July 2017 Correspondence. In a November 2015 Memorandum, based on a Joint Service Records Research Center (JSRRC) finding verifying herbicide usage at Fort Gordon, Georgia where the Veteran served while on active duty, VA conceded that the Veteran had been exposed to herbicides during service. Certain diseases associated with exposure to certain herbicide agents used in support of military operations during the Vietnam era will be considered to have been incurred in service and service connection will be presumed. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption only applies to disorders which the Secretary of VA determines to be the result of in-service exposure to herbicide agents, such as Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Diseases presumed to be associated with herbicide agents are selected by VA based on periodic review and evaluation by the National Academy of Sciences (NAS) of the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides. See Agent Orange Act, Feb. 6, 1991, P.L. 102-4, § 3, 105 Stat. 13; Aug. 14, 1991, P.L. 102-86, Title V, § 503(a), (b)(1), 105 Stat. 424, 425. A disease is considered presumptively associated with herbicide exposure if there is a positive statistical association shown by analysis of medical and scientific evidence. An association is considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against the association. See 38 U.S.C.A. § 1116(b). Under the law as it now stands, a presumption of service connection based on the Veteran's exposure to herbicide agents cannot be granted in this case. This is because kidney cancer is not on the list of diseases associated with herbicide exposure as explained by the VA examiner who provided an opinion in January 2016. However, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran has provided several opinions from his private doctors indicating there may be a link between his kidney cancer and exposure to herbicides. In March 2013, Dr. A.C. stated his belief that exposure to the Agent Orange dioxin "could be linked" to the type of renal neoplasm for which the Veteran was treated. In December 2016, Dr. P.W. stated the Veteran was diagnosed with kidney cancer (Renal Cell Carcinoma, clear cell) and pointed to a study done at the VA Medical Center in Shreveport, Louisiana in 2011 that suggested a connection between renal cell carcinoma and Agent Orange exposure. In May 2017, Dr. G.W. stated that from his perspective he could not "completely exclude" Agent Orange as the cause of the Veteran's renal cell carcinoma. It was noted the Veteran had no other risk factors for development of renal cell carcinoma, to include family history, history of tobacco abuse, or other chemical exposure other than Agent Orange. In August 2017, Dr. P.W. indicated it was more likely than not that kidney cancer was due to Agent Orange exposure because there are "potential links" between Agent Orange and cancer. Also in August 2017, Dr. G.W. stated it was more likely than not that the Veteran's kidney cancer was due to exposure to Agent Orange because according to studies, there is a "potential link" of cancer to Agent Orange. The Veteran's representative also submitted an article indicating that herbicide exposure can increase the risk of kidney cancer. The Board finds that these opinions and general articles that speak to an overall relationship between Agent Orange and cancer are not adequate evidence upon which to grant the claim because they are not specific to the Veteran's case. The opinions of the private doctors are speculative, speaking of potential links and in general terms. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that an alleged disorder "may or may not" be related is too speculative to establish an etiological relationship). The Board finds that currently there is no an adequate opinion of record addressing a possible direct relationship between exposure to Agent Orange/herbicide agents and the development of kidney cancer in the Veteran's case. At the January 2016 VA examination, the examiner concluded only that service connection was not warranted because "kidney cancer is not a conceded diagnosis of exposure to Agent Orange/dioxin." No opinion regarding direct service connection was provided. Thus, remand is necessary to seek an additional opinion. In a July 2017 statement, the Veteran's representative raised the contention that the Veteran's kidney cancer was secondary to his service-connected prostate cancer. The Board has a duty to consider all theories of entitlement to benefits sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered). Given this, on remand, the Board will ask an examiner to opine regarding whether it is at least as likely as not that the Veteran's kidney cancer was caused by or aggravated by his service-connected prostate cancer. See 38 C.F.R. § 3.310. Notable also is that the Veteran is entitled to a supplemental statement of the case on the issue of service connection for kidney cancer pursuant to the directives in the Board's June 2015 remand. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As to the Veteran's claim for an increased initial rating for erectile dysfunction, in his November 2016 notice of disagreement, he explained that in order for him to achieve an erection, it is necessary that an injection of medication be injected into the side of his penis. He contends that he suffered nerve damage following the surgical procedure to remove his cancerous prostate and the erection he achieves is different than a natural one. See May 2017 Hearing Testimony. In an April 2017 statement, the Veteran's representative pointed out that there was no "comment or opinion" in the record "regarding 'deformity with loss of erectile power'". A showing of deformity, with loss of erectile power, is required for entitlement to a 20 percent rating under Diagnostic Code 7522. Given that erectile dysfunction was discovered during an examination for prostate cancer and the Veteran has not had an examination specifically regarding his erectile dysfunction, the Board will remand for a VA genitourinary examination to assess whether or not deformity of the penis is present. Also on remand, relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the electronic claims file. 2. Provide the electronic claims file to an appropriate medical professional to provide an opinion as to whether the development of kidney cancer was at least as likely as not related to the Veteran's period of active duty service, to include conceded exposure to Agent Orange/herbicide agents at Fort Gordon, Georgia or, in the alternative, was caused by or aggravated by his service-connected prostate cancer. After review of the claims folder and all the medical and lay evidence therein, the examiner should opine as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran developed kidney cancer as a result of his military service, including exposure to herbicide agents such as Agent Orange. This opinion should focus on whether, in this Veteran's particular case, there was a relationship between conceded exposure to herbicide agents and this Veteran's development of kidney cancer. It is understood that kidney cancer is not on the list of diseases considered presumptively caused by exposure to herbicides. This opinion seeks a discussion as to direct causation. (b) Whether it is at least as likely as not that the Veteran's kidney cancer is proximately due to, or caused by, his service-connected prostate cancer; and (c) Whether it is at least as likely as not that the Veteran's kidney cancer, has been aggravated by the Veteran's service-connected prostate cancer. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale must accompany all opinions expressed. 3. Schedule the Veteran for a VA genitourinary examination to identify the current level of impairment resulting from his service-connected erectile dysfunction. The examiner should note the presence or absence of deformity of the penis. The claim file should be reviewed, to include the Veteran's arguments that he suffered nerve damage following surgery to remove his prostate which resulted in "deformity with loss of erectile power." A rationale must accompany all opinions expressed. 4. When the development requested has been completed, readjudicate the Veteran's claims. If the benefits sought are not granted to the fullest extent, furnish the Veteran and his representative with a supplemental statement of the case and provide the Veteran with an opportunity to respond in accordance with applicable statutes and regulations. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).