Citation Nr: 1804000 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 15-09 331 ) 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 right radical laparoscopic nephrectomy (also claimed as clear cell type nephrectomy), to include as due to exposure to herbicides or herbicidal agents. REPRESENTATION Appellant represented by: Matthew Hill, Attorney at Law ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter is before the Board pursuant to the Veteran's request for consideration for review of this case in the Pre-Hearing Conference Pilot Program. The aforementioned request was granted and the Board will proceed with appellate review of the Veteran's claim. FINDINGS OF FACT 1. The Veteran served aboard the U.S.S. Preston (DD-795), which operated on the Mekong River Delta and in the Ganh Rai Bay during the Vietnam era, to include in June 1967. Based on this service, the Veteran's exposure to Agent Orange has been conceded. 2. 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, the competent medical evidence is, at least, in relative equipoise with a finding that the Veteran's renal cell carcinoma was caused by or otherwise related to his exposure to Agent Orange in Vietnam. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for renal cell carcinoma status post right radical laparoscopic nephrectomy (also claimed as clear cell type nephrectomy), are met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2015); 38 C.F.R. §§ 3.303 (a), 3.304 (2017). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2017). In determining whether service connection is warranted for a disorder, 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.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Presumptive service connection VA regulations provide that if a Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975, he is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). Furthermore, "service in the Republic of Vietnam" includes service in the waters offshore if the condition of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313 (a). This provision has been interpreted as requiring the veteran's presence at some point on the landmass or the inland waters of Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual, IV.ii.1.H.2.a. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. A review of the record indicates that the Veteran served aboard the U.S.S. Preston (DD-795). A deck log for the U.S.S. Preston (DD-795), noted the ship's operations on the Mekong River Delta, Ganh Rai Bay, and the Saignon River during the Vietnam era. The USS Preston was identified as a ship temporarily operating on Vietnam's inland waterways. As such, it is presumed that he was exposed to herbicides or herbicidal agents, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6); 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease 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 (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. In this case, the Veteran contends that his status post right radical laparoscopic nephrectomy (also claimed as clear cell type nephrectomy), was caused by or otherwise related to his exposure to Agent Orange in-service. As the aforementioned condition is not "specifically" covered by the presumption, the Veteran may nevertheless, assert a claim for service connection on a direct basis. Direct service connection When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board will now turn to address the entitlement to service connection is warranted on a direct service connection basis. Service treatment records are negative for treatment or complaints of renal cell carcinoma during active military service. The Veteran's January 1965 enlistment examination, notes a normal physical evaluation with admissions regarding childhood illnesses including mumps, whooping cough, and a reference to the removal of his tonsils and adenoids at the age of 16. At discharge, in 1969, the Veteran's physical examination was also normal. There was no documentation of renal cell carcinoma or symptoms thereof in the accompanying report of medical history. Post-service medical records demonstrate that the Veteran was diagnosed with renal cell carcinoma in November 2004. Although the record shows that the Veteran's renal cell carcinoma was not diagnosed in service or for many years thereafter, as set forth above, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Thus, if there is a causal connection between the current condition and service, service connection may be established. Godfrey v. Derwinski, 2 Vet. App. 354 (1992). The Board observes that there are multiple medical opinions addressing the etiology of the Veteran's renal cell carcinoma. In December 2011, upon review of the Veteran's medical history, a private urologist opined that the Veteran had no other risk factors for renal cancer and noted a lack of family history of the disease. Thus, the physician concluded, that it is at least as likely as not that the Veterans renal cancer was caused by or related to exposure to Agent Orange during active service. In December 2012, the Veteran underwent a VA examination to assess the nature and etiology of his renal carcinoma. During the clinical evaluation, the Veteran reported a history of kidney stones and left side flank pain. He noted a suspicious on the right side, which lead to a CT scan, biopsy and later, diagnosis of renal carcinoma. The veteran underwent a right radical laparoscopic nephrectomy in 2004. The Veteran notes periodically re-occurring kidney stones and occasional dribbling after voiding due to an enlarged prostate. Following a review of the record and clinical evaluation, the examiner opined that it is less likely than not that the Veteran's renal carcinoma was caused by or otherwise related to his active service. In reaching the stated conclusion, the examiner stated there is no known cause and effect relationship between the exposure to Agent Orange in the Vietnam and the development of renal carcinoma (clear cell type nephrectomy). While the Board acknowledges the VA examiner's December 2012 findings, it nevertheless concludes that the most probative medical evidence of record indicates that the Veteran's renal cell carcinoma was related to his active service, to include presumed Agent Orange exposure. In reaching this conclusion, the Board notes a March 2016 Independent Medical Opinion provided by a an experienced VA physician and medical advisor. In pertinent part, the opinion explained that Agent Orange contained a combination of toxic compounds that are cancer promoters, and cites review of multiple studies on the relationship between Agent Orange and renal cell carcinoma show a positive relative risk. Further, the opinion notes, epidemiologic and toxicological evidence suggests that the combination of toxic compounds contained in Agent Orange and other herbicides because cancers in many areas include the kidneys and renal pelvis. Therefore, given that the Veteran had no other known risk factors for renal cell carcinoma, the physician opined that it is at least as likely as not that the Veteran's renal cell carcinoma was caused by exposure to herbicides while serving in Vietnam. In contrast, the VA medical opinion denies a causal relationship between renal carcinoma and Agent Orange exposure based upon a conclusion that there is no known cause and effect relationship between the exposure to Agent Orange in the Vietnam and the development of renal carcinoma (clear cell type nephrectomy). Neither evidentiary support nor a rationale was provided for the stated conclusion. Further, the Board notes that the independent medical opinion was provided by a board certified physician trained in occupational/environmental medicine with extensive experience in military medicine and environmental health. The asserted opinion was 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. It also specifically addressed all the medical opinions of record, to include the December 2012 VA examiner's opinion, and provided a rationale for opining that the later was insufficient. By comparison, the independent medical opinion provided a much more detailed and extensive rationale that includes references to specific studies found in medical literature which suggest a relationship between Agent Orange exposure and the development of renal cell carcinoma. Accordingly, the independent medical opinion is 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 renal carcinoma is not related to Agent Orange exposure in service. Given the competent, probative medical opinion and collective medical evidence, the Board finds that application of the benefit-of-the-doubt doctrine resolves in favor of the Veteran's claim for service connection for renal cell carcinoma as due to Agent Orange exposure. ORDER Service connection for renal cell carcinoma status post radical laparoscopic nephrectomy, right (also claimed as clear cell type nephrectomy), to include as due to exposure to herbicides or herbicidal agents is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs