Citation Nr: 1802829 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 17-09 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for renal/kidney cancer, to include residuals of a laparoscopic nephroureterectomy. 2. Entitlement to service connection for bladder cancer. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had periods of active service from October 1961 to August 1962 and from April 1968 to December 1969 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO issued another decision in November 2013 that confirmed the denial of service connection for bladder and kidney cancer. The Veteran initially requested a hearing before a Veterans Law Judge (VLJ) when he filed his substantive appeal in this matter. He subsequently withdrew that request in correspondence dated August 2017. In October 2017, the Board requested an opinion from a specialist of the Veterans Health Administration (VHA). An opinion was received and associated with the claims file in December 2017. This 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). FINDINGS OF FACT 1. It is reasonably shown by the record that the Veteran's renal/kidney cancer, to include residuals of a laparoscopic nephroureterectomy, was caused by or related to his service. 2. It is reasonably shown by the record that the Veteran's bladder cancer was caused by or related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for renal/kidney cancer, to include residuals of a laparoscopic nephroureterectomy, are met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As the Board's decision to grant the Veteran's claim for service connection for asthma is completely favorable, no further action is required to comply with the duties to notify and assist in the matter. II. Service Connection for Renal/Kidney and Bladder Cancers Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Where the evidence establishes that veterans have been exposed to certain herbicide agents, VA regulations also presume that certain conditions are connected to these veterans' exposure to those herbicide agents. 38 U.S.C. § 1112, 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). VA regulations presume that veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, were exposed to those herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The evidence of record documents that the Veteran was diagnosed with renal/kidney cancer and bladder cancer in 2008 and received treatment for these conditions in the years leading up to his claim for service connection in August 2011. Among other treatments, the Veteran had a left nephrectomy in February 2009 leaving him with a single kidney. While it appears that the Veteran may have been cancer free for at least part of the appeal period, or at the very least that cancer was not always detected on certain tests during the appeal period, the Veteran's medical treatment records and lay statements document that he continued to be monitored for a return of his cancer and the maintenance of the functions of the affected body systems during and in the time proximate to this appeal. Consequently, the Board finds that the Veteran has current disabilities related to his kidney and bladder cancer diagnoses. Similarly, the evidence of record documents that he was in Vietnam for nearly approximately 8 months during his April 1968 to December 1969 period of active service. As previously described, VA regulations presume that veterans who served in Vietnam during this time period were exposed to certain herbicide agents such as Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's particular cancers are not among those for which service connection is presumptively available due to exposure to herbicide agents. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The record includes several opinions regarding the relationship between the Veteran's cancer diagnoses and his exposure to herbicide agents in Vietnam. In this regard, the Veteran provided several statements from physicians opining that there was a connection between the Veteran's cancer diagnoses and his exposure to herbicide agents. However, these statements provided little or no rationale explaining the reasons that these providers had reached these conclusions. In December 2016, the Board received a report from a VA examiner that reached a contrary conclusion. Based on a review of the relevant medical literature, the examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's in-service exposure to herbicide agents caused him to develop the cancers he did. After the receipt of this opinion, the Veteran submitted articles indicating that there was a link between herbicide exposure and bladder and kidney cancers. Consequently, the Board sought an additional opinion from a specialist to guide its consideration of this conflicting evidence. The December 2017 VHA opinion explained that the Veteran's kidney and bladder cancers were related to each other because they were both transitional cell carcinomas which have a related histology. Based on a review of the relevant medical literature, and quoting from the abstracts of two articles regarding the connection between herbicide exposure and bladder and kidney cancers of the Veteran's type, the VHA opinion concluded that it was at least as likely as not that the Veteran's transitional cell carcinomas in his kidney and his bladder were related to each other and to his in-service herbicide exposure. Here, the record contains two opinions both citing the medical literature, that reach opposite conclusions as to the question of whether there is an etiological relationship between the Veteran's kidney and bladder cancers and his in-service herbicide exposure. Thus, while the Board recognizes that the medical evidence is not unequivocal in this case, the Board finds that it has nevertheless placed the pertinent record in relative equipoise, and, resolving all reasonable doubt in the Veteran's favor, service connection for kidney cancer and bladder cancer should be granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. ORDER Service connection for renal or kidney cancer, to include residuals of a laparoscopic nephroureterectomy, is granted. Service connection for bladder cancer is granted. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs