Citation Nr: 1804069	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-35 286	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for renal cell carcinoma.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Saindon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from April 1966 to April 1969, including service in the Republic of Vietnam.

This matter comes from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota.

In his substantive appeal, the Veteran requested a Board hearing.  In a December 2017 statement, he requested review of this appeal under the Board's Pre-Hearing Conference (PHC) program.  The statement provided that if the Board were to accept the Veteran's request to consider the appeal under the PHC program, then the he would agree to waive his right to a Board hearing. The undersigned Veterans Law Judge granted the Veteran's request to adjudicate the appeal under the PHC program.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

It is at least as likely as not that the Veteran's renal cell carcinoma was caused by his exposure to Agent Orange during service.


CONCLUSION OF LAW

The criteria for service connection for renal cell carcinoma have been met.  38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

A Veteran that had active service in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 is presumed to have been exposed to herbicide agents.  38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents (Agent Orange).   

The Veteran has renal cell carcinoma.  This is not one of the presumptive conditions enumerated in 38 U.S.C. § 3.309(e).  Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), a claimant is not precluded from establishing service connection with proof of actual causation, that is proof of exposure to herbicide agents that causes a disability.  See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994).  In other words, even if the condition is not presumed to be connected to Agent Orange exposure, if the evidence demonstrates that the Veteran's disease was at least as likely as not caused by Agent Orange, it may be service connected.

In May 2014, the Veteran's physician opined that it was more likely than not that the Veteran's renal cell carcinoma was related to his exposure to Agent Orange.  In December 2014, the same physician provided a rationale for his opinion, stating that the Veteran did not have a hereditary predisposition to clear cell renal carcinoma and there was no familiar history of kidney or any other type of cancers in members of his family.  Further, the Veteran's work history indicated that he was not exposed to carcinogenic agents.  The physician continued that dioxins (such as those found in Agent Orange) are known to cause cancer in multiple organs.  Although the physician acknowledged that the scientific literature had not clearly linked renal cell carcinomas with Agent Orange, given the indicated lack of other likely sources of the cancer, it was at least as likely as not that the Veteran's renal cell carcinoma was caused by his exposure to Agent Orange.

The Veteran was not afforded a VA examination; however, the opinion from the Veteran's physician is uncontradicted by the evidence and provides sufficient rationale to be relied upon.  Accordingly, the evidence indicates that it is at least as likely as not that the Veteran's renal cell carcinoma was caused by Agent Orange exposure during service and service connection should be granted.


ORDER

Entitlement to service connection for renal cell carcinoma is granted.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs