Citation Nr: 1804935	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  16-04 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for renal cell carcinoma (also claimed as kidney cancer), to include as due to herbicide exposure.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Garcia, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1968 to August 1972.  

This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office.  

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).  


FINDING OF FACT

There is at least an approximate balance of positive and negative evidence as to whether the Veteran's renal cell carcinoma disability manifested during, or is otherwise etiologically related to, his active military service.  


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for his renal cell carcinoma disability have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a veteran must generally show: (1) the existence of a present disability; (2) the 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.  E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e).  In instances where presumptive service connection due to herbicide exposure does not apply, service connection for a disability due to herbicide exposure can be established where there is proof of direct causation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  

Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail.").  

In the instant case, the Veteran contends that he is entitled to service connection for renal cell carcinoma as due to in-service Agent Orange Exposure and/or asbestos exposure.  As reflected in the April 2015 rating decision, in-service exposure to herbicides has been conceded in the Veteran's case.  

The medical evidence of record establishes that the Veteran has a current diagnosis of stage IV renal cell carcinoma.  Thus, the first Shedden element of a current disability is met.  E.g., Shedden, 381 F.3d at 1167.  

While the Board acknowledges that the April 2015 VA examiner opined that there was no evidence to link the Veteran's current renal cell carcinoma to in-service asbestos or herbicide exposure, when affording the Veteran the benefit of the doubt, the evidence of record supports a finding his disability is etiologically related to his active military service.  Specifically, in a January 2016 letter, the Veteran's treating provider, Dr. D. E., noted the Veteran's in-service herbicide exposure, detailed the course of his kidney cancer, and opined that it was more likely than not that his renal cell carcinoma was causally linked to his in-service herbicide exposure.  Dr. E. provided that based on his personal experience treating military patients with kidney cancer and his review of pertinent medical literature, herbicide exposure has been associated with multiple types of cancer, including kidney cancer.  Moreover, Dr. E. stressed given the unusually aggressive pattern of the Veteran's disease, he was highly suspicious that the Veteran's disability was a result of herbicide exposure.  Given Dr. E.'s specialty of urologic oncology, his understanding of the Veteran's condition, and the rationale that he provided, the Board finds Dr. E.'s opinion to be fully-informed and reliable.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008).  Thus, the evidence of record is at least in relative equipoise with respect to the question of whether the Veteran's renal cell carcinoma disability was incurred in, or is otherwise etiologically related to, his active military service.  See Gilbert, 1 Vet. App. at 54.  

As the evidence of record is at least in relative equipoise, the benefit-of-the-doubt rule applies, and service connection for the Veteran's renal cell carcinoma disability is warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Entitlement to service connection for renal cell carcinoma is granted.  





____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs