Citation Nr: 18151135 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-32 156 DATE: November 16, 2018 ORDER Entitlement to service connection for residuals of clear cell adenocarcinoma of the right kidney, status post right kidney removal, to include as a result of exposure to ionizing radiation is denied. Entitlement to service connection for a surgical scar as a result of right kidney removal is denied. FINDINGS OF FACT 1. The Veteran did not participate in a radiation-risk activity in service. 2. The Veteran’s renal cancer is a radiogenic disease; however, the evidence does not demonstrate exposure to ionizing radiation. 3. The most probative evidence weighs against a finding that the Veteran's renal cell carcinoma disorder had onset during active service, manifested within one year of service discharge, or is otherwise related to active service, to include radiation exposure therein. 4. A surgical scar status post radical nephrectomy to treat a diagnosis of clear cell renal adenocarcinoma is not proximately due to or the result of, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran’s renal cancer was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2018). 2. The criteria for service connection for a surgical scar as a result of radical nephrectomy to treat a diagnosis of clear cell renal adenocarcinoma have not been met, to include as secondary to a service-connected disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) at a February 2016 hearing. A transcript of this hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including malignant tumors, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for a disability based upon radiation exposure may be awarded on separate legal bases. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, radiogenic diseases may also be service connected. 38 C.F.R. § 3.311. Notwithstanding the presumptive provisions pertaining to radiogenic diseases or a presumptive disease for radiation-exposed veterans, service connection for a disease due to radiation exposure may also be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Under the first basis, a radiation-exposed veteran is a veteran who while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity, which is specifically defined by VA regulation. 38 C.F.R. § 3.309 (d)(3)(A)-(E). A radiation risk activity includes onsite participation in an atmospheric detonation test, participation in the occupation of Hiroshima or Nagasaki, Japan, by United States forces from August 6, 1945 to July 1, 1946, internment as a prisoner of war in Japan during World War II from August 6, 1945 to July 1, 1946, and particular service in the Department of Energy. 38 U.S.C. § 1112 (c)(3); 38 C.F.R. § 3.309 (d)(3). If a radiation-exposed Veteran has one of the presumptive diseases, such disease shall be considered to have been incurred in or been aggravated by active service, despite there being no record of evidence of such disease during a period of service. 38 U.S.C. § 1112 (c). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin’s disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309 (d)(2). Cancer of the urinary tract includes renal cell carcinoma. Under the second basis, service connection may be granted where there is exposure to ionizing radiation and the subsequent development of a radiogenic disease within a specified time period. 38 C.F.R. § 3.311 (b). If a veteran was exposed in service to ionizing radiation and, after service, developed any cancer within a period specified for each by law, then the veteran’s claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. 38 C.F.R. § 3.311. As noted above, service connection for a disease due to radiation exposure may also be established with proof of direct causation. Combee, 34 F.3d 1039. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2018). 1. Entitlement to service connection for residuals of clear cell adenocarcinoma of the right kidney, status post right kidney removal, to include as a result of exposure to ionizing radiation The Veteran asserts he developed kidney cancer as a result of one instance of exposure to radar during his service. The Board will discuss the factual history prior to the analysis. Factual History Private treatment records show the diagnosis of renal cell carcinoma in May 2011. Subsequent private treatment records indicate that the Veteran underwent radical nephrectomy to treat a diagnosis of clear cell renal adenocarcinoma in May 2011. In a statement received in August 2011, the Veteran described one specific incident that resulted in his exposure to the full power of the Radar for 10 to 15 minutes at point-blank range. In January or February 1971, the Veteran was replacing a radar antenna. The work stand was placed directly in front of the aircraft, which allowed workers to climb the craft, open the raydome, and replace or adjust the radar components. While the Veteran was standing in front of the radar dish, one of his fellow service-men turned on the radar and the antenna began to sweep from side to side. After 10 to 15 minutes, the Veteran reportedly started to feel very warm in his chest and abdominal area, despite it being winter and cold outside. He was subsequently informed that the radar had been transmitting the entire time, despite normal practices. The Veteran alleged this incident contributed to his kidney cancer with subsequent kidney removal in May 2011. In March 2012, the Veteran submitted a private opinion from Dr. MA. The doctor noted the Veteran’s diagnosis of adenocarcinoma of the right kidney in April 2011 and subsequent removal of the kidney in May 201. The doctor noted that the Veteran questioned whether his malignancy was a result of exposure to radar equipment while he served in the military. The doctor explained that the data he was able to ascertain was very inconclusive on this subject. Thus, the doctor could not definitively say whether the malignancy is a result of the exposure. He also provided that he could not definitively say that the malignancy is not a result of the Veteran’s exposure during military service. An August 2014 letter from the Department of the Navy Naval Dosimetry Center cited to a review of the agency’s exposure registry, which revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran and his service. The letter advised that the adjudicator compare the Veteran’s DD 1141 NAVMED 6470/10, or the equivalent document of the Veteran’s exposure record from his medical records with the conclusions of the letter. The Veteran clarified in a November 2014 statement that he had never claimed that he had suffered radiation exposure due to ionizing radiation. Rather, he had claimed radiation exposure that was related to a one-time exposure to electro-magnetic radiation from an aircraft radar system. During the February 2016 DRO hearing, the Veteran affirmed that his primary duties during service was performing maintenance on A-7 aircraft, which included maintenance on the radar, computer, Doppler altimeter, and the heads up display. He further noted that the majority of his service duties was doing radar maintenance. He again affirmed his argument regarding in-service exposure to extended radar transmittal that was initially described in his August 2011 statement. VA provided an examination in June 2016. After reviewing the Veteran’s records and conducting an in-person examination, the examiner opined that the Veteran’s residuals of clear-cell renal adenocarcinoma were less likely incurred in or caused by irradiation by aircraft radar during service. The examiner first reviewed the medical literature entitled “Radiofrequency exposure and mammalian cell toxicity, genotoxicity, and transformation,” which had been submitted by the Veteran in support of his claim in 2011. The examiner noted that the study’s authors reported that their examination of the published in vitro literature showed that the “weight of evidence available” indicated that radiofrequency field (RF) exposure does not cause toxicity, genotoxicity, and transformation in the mammalian cell. The examiner explained that the research addressed by the medical report goes against the Veteran’s claim. According to medical literature, continued the examiner, the highest rates of renal cell carcinoma (RCC) are observed in North America and the Czech Republic. RCC is approximately 50 percent more common in men compared with women, and occurs predominantly in the sixth to eighth decade of life with the median age at diagnosis around 6 4 years of age, according to the 2003 and 2006 National Cancer Institute (NCI) Surveillance, Epidemiology, and End Results (SEER) Cancer Statistics Review. Within the United States, Whites, American Indians/Alaska natives, Hispanic/Latinos, and African Americans have a greater incidence of RCC than Asian Americans or Pacific Islanders. The examiner explained that, as a white, North American man, who was diagnosed with RCC at age 62.5 years, the Veteran fits the common epidemiologic picture for this disease. The examiner next addressed established risk factors, per UpToDate, for RCC, which include cigarette smoking, hypertension, obesity, analgesic usage, and genetic factors. The examiner referred to March 2011 treatment records that show the Veteran’s use of NSAIDS, a body mass index in the overweight range, and a family history of diabetes and hypertension, though the Veteran does not have these conditions. However, the treatment record did document a systolic blood pressure of 155 mmHG at that time with treatment of triglyceride-lowering agent. The Veteran reported significant secondhand smoke exposure through 19 years of age, though the Veteran was a lifelong non-smoker. Of the many known or suspected risk factors for RCC, exposure to irradiation by aircraft radar, or radiofrequency/microwave radiation, was not included within the current UpToDate article, “Epidemiology, pathology, and pathogenesis of renal cell carcinoma.” The examiner continued, explained that if the Veteran’s 1971 exposure event had resulted in pertinent gene mutations, a resultant cancer would most likely have manifested itself prior to 40 years post-active duty. The Veteran’s kidney cancer was confined to the kidney and removed without any signs of positive margins/tumor extension. Therefore, it was unlikely to have been present for many years. The examiner concluded that the precise etiology for the Veteran’s RCC was not known. However, his race, nationality, gender, age, and increased body mass index place him at an increased likelihood for the disease. A history of analgesic usage, cigarette smoke exposure, history of blood pressure elevation, and toxic exposures during the 40 years since his 1971 radiofrequency/microwave radiation exposure, were also potential contributors. Analysis As noted above, the Veteran essentially contends that his renal cancer was caused by his reported exposure to electromagnetic radar waves in 1971 while working in close proximity to an aircraft radar. Initially, the Board notes that post-service treatment records show that the Veteran was diagnosed with renal cancer in May 2011. The right kidney was removed shortly thereafter. A present disability is thus shown. With regard to exposure to ionizing radiation, however, the Board concludes that the preponderance of the evidence of record is against such a claim. First, the Veteran does not contend, nor do the available personnel records show, that he participated in a radiation-risk activity. See 38 C.F.R. § 3.309 (d)(3)(ii). Second, the Veteran does not contend, and the evidence does not support a finding that there was exposure to ionizing radiation in service. In that regard, the Department of the Navy Naval Dosimetry Center found occupational exposure to ionizing radiation pertaining to the Veteran and his service. Even though renal cancer is included in the list of diseases specific to radiation-exposed veterans, and for which service connection may be granted by presumption pursuant to 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d), and is also included as a radiogenic disease listed in 38 C.F.R. § 3.311, without evidence showing that the Veteran was exposed to ionizing radiation in service, neither of these provisions are applicable. Service connection on a presumptive basis is not warranted, therefore. The Veteran denies exposure to ionizing radiation, however. Rather, he claims radiation exposure that was related to a one-time exposure to electro-magnetic radiation from an aircraft radar system. Further, service connection may still be established with proof of actual direct causation. 38 C.F.R. § 3.303. To that end, the Board has considered whether there is a direct link between the Veteran’s renal cancer and active service. The Board concedes the Veteran’s reported in-service event of being exposed to electromagnetic waves from an active radar on an aircraft the was servicing. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). However, the Board finds that the evidence of record does not support a finding that the renal cell carcinoma, with all associated residuals, is related to active service. In making this finding, the Board accords the June 2016 VA opinion significant probative weight because it is premised on an interview with the Veteran, a comprehensive review of the Veteran’s medical records, and is supported by an adequate rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). The examiner accepted the Veteran’s statement regarding his in-service exposure, addressed the statement specifically by referring to medical principles, and further addressed all evidence provided by the Veteran in support of his claim. The opinion supports a finding that the Veteran’s renal cell carcinoma did not have onset in service and is not otherwise related to service, to include exposure to radar therein. The opinion also supports a finding that the Veteran’s renal cell carcinoma, a malignant tumor, did not manifest to a compensable degree within one year of the Veteran’s separation from active duty. Further, the Veteran first received a diagnosis of renal cell carcinoma in 2015, more than 40 years post-service. The Board accords the March 2012 opinion from Dr. MA little probative weight. The opinion essentially concludes that it is not possible to rule out the Veteran’s contention that his malignancy is related to the Veteran’s exposure during service. This is not an adequate opinion because it is inconclusive and relies on speculation. Further, to the extent the Veteran contends that his renal cell carcinoma is related to service, his contentions are not competent lay evidence. Although it is error to categorically reject a lay person as competent to provide an etiological opinion, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the etiology of renal cell carcinoma, which is an internal medical process not capable of lay observation, is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Regardless, the Veteran’s assertions are outweighed by the medical evidence of record, which is more probative as it is based upon medical expertise. Accordingly, service connection is denied on a direct basis and on presumptive bases for the Veteran’s claimed renal cell carcinoma and its residuals. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a surgical scar as a result of right kidney removal The Veteran underwent radical nephrectomy to treat a diagnosis of clear cell renal adenocarcinoma in May 2011. He claims service connection for the resulting surgical scar. Initially, the Board notes that a present disability is shown. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). However, the primary disability upon which the Veteran’s service connection claim for the scar is based, his renal cell carcinoma, is not service-connected. As such, the Veteran’s claim is not warranted on a secondary basis. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel