Citation Nr: 1802075	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-26 411	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from June 1960 to January 1980, which included combat service in the Republic of Vietnam.

This appeal is before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In March 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript is included in the claims file.  The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's renal cell carcinoma is not related his in-service Agent Orange or diesel fume exposure or to service in any other way.


CONCLUSION OF LAW

The criteria for service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Initially, the Board notes that the RO previously denied service connection for renal cell carcinoma in a January 2005 rating decision, and that decision became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103; see also 38 C.F.R. § 3.156(b), (c).  However, new and material evidence pertaining to this claim has been received since this rating decision; such evidence will be discussed below in addressing the merits of the Veteran's service connection claims.  Thus, that portion of the Veteran's current service connection claim that had previously been denied is considered reopened, and the Board will consider the issue on the merits.  See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). 

If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  

Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303.

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

As reflected in March 2011 and November 2012 statements and in his March 2016 testimony before the Board, the Veteran contends that his currently diagnosed renal cell carcinoma with metastatic recurrence in the left lung mediastinum is the result of his in-service Agent Orange and/or diesel fume exposure.

The Veteran had combat service in the Republic of Vietnam during the Vietnam Era, and is therefore presumed to have been exposed to Agent Orange in service.  Also, as reflected in his service records and March 2016 testimony before the Board, he performed duties for seven years and eight months of his service involving diesel-operated motor boat transportation, culminating with being a Tugmaster, which exposed him to diesel fumes.  

In August 2004, he was found to have had large solid mass at the upper pole of the left kidney, was subsequently diagnosed with renal cell carcinoma, and underwent a left nephrectomy.  A 2009 chest X-ray demonstrated evidence of a possible lung mass, and the Veteran subsequently underwent a computed tomography (CT) and positron emission tomography (PET) imaging that diagnosed evidence of mediastinal adenopathy as well as left lung lesions concerning for metastatic disease.  Subsequent biopsy confirmed a recurrence of metastatic renal cell carcinoma.  A diagnosis of renal cell carcinoma status post left nephrectomy with metastatic recurrence in mediastinum in left lung was confirmed on January 2010 VA examination.  

In support of his claim, the Veteran submitted a May 2011 news release of the American Urological Association regarding a possible link between renal cancer and Agent Orange exposure, and particularly regarding the severity of renal cancer in Agent Orange-exposed patients.  According to the news release, new data indicated that there may be a connection between exposure to Agent Orange among Vietnam Veterans and subsequent development of renal cancer.  The news release also indicates that renal cancer in Agent Orange-exposed patients may be more severe and prone to metastases. 

In September 2016, a Veteran's Health Administration (VHA) physician, a staff oncologist, reviewed the record and opined that it was not at least as likely as not that the Veteran's renal cell carcinoma with metastatic recurrence in the left lung mediastinum was the result of in-service exposure to Agent Orange and/or diesel fumes.  The physician noted that the Veteran did not have lung cancer, as "lung cancer" in medicine refers to a primary cancer and the Veteran had kidney cancer that subsequently spread to the lung; this is not the same as "lung cancer," and the appropriate analysis of risk factors was only that for kidney cancer.  The physician further noted that there had been two studies of Vietnam Veterans to Agent Orange and the development of cancer that have examined the prevalence of kidney cancer, but that the data did not support an association of Agent Orange exposure and subsequent development of kidney cancer.  Also, there have been a large number of studies examining cancer in workers exposed to diesel exhaust; there has been a small trend of increased incidence of renal cell carcinoma in men exposed to diesel exhaust fumes, but other studies have shown no association of kidney cancer with exposure to diesel exhaust.  Therefore, according to the VHA oncologist, whether there is any increased risk of kidney cancer from exposure to diesel fumes is unclear, and if there is an increased risk it is small and insufficient to conclude that the Veteran's kidney cancer was at least as likely not caused by exposure to diesel fumes.

In a June 2017 addendum, the VHA physician noted reviewing the news release of the American Urological Association regarding and abstract presented at the 106th Meeting of the American Urological Association in 2011.  The findings were that clear cell carcinoma was the most common histologic type in the 13 Veterans who claimed exposure to Agent Orange out of 297 Veterans surveyed with renal cell carcinoma.  According to the VHA physician, this was the expected result, as clear cell carcinoma was the most common histologic type of renal cell carcinoma.  The physician further provided the following assessment: 

Such findings support in no way that there is an increased risk of renal cell carcinoma in veterans exposed to agent orange; the study was not designed to address that question.

The study was an attempt to determine whether kidney cancer in patients exposed to agent orange had a different course than in those not exposed to agent orange.  

It was not sized to answer this question with statistical significance.  This may explain why in the intervening 6 years this study has never been published after peer-review [citation omitted].

I would characterize this report as a hypothesis generating study, but not one that answers any questions.  This is the conclusion of the authors, 'These data indicate that we may need to better determine whether exposure to these chemicals should be considered a risk factor for kidney cancer.'  No such studies aimed at better understanding this risk have been published.

This new release in no way changes my prior determination that there are no peer-reviewed publications that support a link between agent orange exposure and kidney cancer.

The Board finds the VHA examining oncologist's opinions persuasive.  The VHA oncologist provided a clear rationale for his opinions, discussing the evidence of record and the applicable medical literature and principles extensively in support of his opinions.  He addressed the May 2011 news release of the American Urological Association submitted by the Veteran, and explained clearly why the study cited in the release was not persuasive in establishing a link between the Veteran's kidney cancer and his Agent Orange exposure.  The examiner also noted the conflicting studies regarding the relationship between diesel exhaust and kidney cancer, and explained how such evidence was unclear and did not support a level of probability of at least as likely as not that the Veteran's kidney cancer might have been related to such diesel fume exposure.

The VHA physician, furthermore, clearly determined that the medical evidence weighing against any link between kidney cancer and Agent Orange or diesel fume exposure that he discussed was persuasive and discussed in detail why, including its nature, scope, significance, and supporting or conflicting data.  See Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (statistical evidence may be a factor considered by a medical expert in forming an opinion that a disability is not related to Agent Orange when supported by consideration of such other factors or further analysis that can be weighed by the Board; one such factor of particular relevance is whether a medical professional finds studies persuasive); see also Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010);  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  His determination in this regard is particularly relevant as the only medical evidence supporting any connection between the Veteran's renal cell carcinoma and his in-service Agent Orange or diesel fume exposure is general statistical evidence, rather than medical evidence specific to his particular case; the VHA physician considered, discussed, and analyzed such evidence, and ultimately determined that it was insufficient to support that the Veteran's renal cell carcinoma was at least as likely as not related in any way to his in-service Agent Orange and/or diesel fume exposure.  

The Board notes VA treatment records submitted by the Veteran including a September 2011 note indicating that he was found to have a malignancy that "could be lung cancer."  However, further treatment records, including an October 2011 VA treatment record following CT scan, reflect a diagnosis of metastatic renal cell cancer that had spread to the Veteran's lung, rather than lung cancer; again, the VHA oncologist's report confirms this assessment.

Therefore, a preponderance of the evidence is against a finding that the Veteran's renal cell carcinoma is related to his in-service Agent Orange or diesel fume exposure or to service in any other way.  Accordingly, service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum must be denied.


ORDER

Service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum is denied.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs