Citation Nr: 18154039 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-12 641 DATE: November 29, 2018 ORDER 1. Service connection for kidney cancer status post right kidney removal is granted. 2. Service connection for bladder cancer is granted. 3. Service connection for prostate cancer, as secondary to kidney and/or bladder cancer, is granted.   FINDINGS OF FACT 1. The Veteran’s kidney cancer status post right kidney removal is due to presumed in-service herbicide exposure. 2. The Veteran’s bladder cancer is due to presumed in-service herbicide exposure. 3. The Veteran’s prostate cancer was caused by his kidney and/or bladder cancer. CONCLUSIONS OF LAW 1. The criteria to establish service connection for renal cancer status post right kidney removal have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for prostate cancer, as secondary to bladder cancer, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. The case is on appeal from a January 2012 rating decision. Most recently, in August 2017, the Board dismissed a withdrawn claim service connection for gout and remanded the claims presently on appeal for issuance of a supplemental statement of the case (SSOC). In May 2018, the Veteran’s representative requested a 60 day extension to submit additional evidence, which the Board granted in June 2018. Thereafter, in August 2018, the Veteran’s representative requested a second 60 day extension to submit additional evidence, which the Board granted in September 2018. The Veteran’s representative then submitted additional evidence and argument in October 2018. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962 to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). For veterans exposed to an herbicide agent during active service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). Prostate cancer is listed, while kidney cancer and bladder cancer are not listed. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for kidney cancer status post right kidney removal. 2. Service connection for bladder cancer. The Veteran contends that his kidney and bladder conditions were caused by exposure to herbicide agents such as Agent Orange. The Board has already determined that the Veteran is presumed to have been exposed to herbicide agents such as Agent Orange. In August 2012 and May 2013, the Veteran submitted Disability Benefit Questionnaires drafted by a private physician in August 2012. The physician reported that the Veteran’s kidney cancer was diagnosed in November 2006 and that his right kidney was removed at such time. The physician also reported that the Veteran’s bladder cancer was diagnosed in September 2007. The physician also reported that the Veteran’s kidney and bladder cancers are “as likely as not related to military service.” However, this physician did not provide a rationale for these conclusions. Thereafter, pursuant to a November 2015 Board remand, the Veteran was afforded examinations in regard to these claim in November 2016. The examiner cited scientific studies which concluded that there is inadequate or insufficient evidence to determine whether there is an association between herbicide exposure and kidney cancer. The examiner also concluded that the Veteran’s bladder was caused by his kidney cancer. Subsequently, in March 2017, the Veteran’s representative submitted a private medical opinion in regard to the etiologies of the Veteran’s kidney, bladder, and prostate cancers. The physician is a professor of clinical medicine at a nationally recognized university’s medical school. He considered the Veteran’s risk factors for developing kidney and bladder cancer as well as scientific studies. The physician concluded that the Veteran’s kidney and bladder cancers developed independently of each other and that it was more likely than not that such disorders were related to herbicide exposure. The physician explained the Veteran’s exposure to herbicides during service combined with altered insulin levels resulted in the Veteran’s kidney and bladder cancers. The Board notes that the Veteran is already service connected for diabetes mellitus, type 2. The physician also explained that scientific studies conducted after those cited by the November 2016 VA examiner support this conclusion. Thereafter, the Board requested a medical opinion from the Veterans Health Administration (VHA), which was obtained in May 2018. The author is a Chief of Urology at a VA Medical Center. Based on a review of the Veteran’s complete file, the examiner found that the Veteran’s kidney and bladder cancers were not related to herbicide exposure. The examiner stated that there is no medical literature supporting such a relationship. The examiner also referenced two medical studies that he claimed support his conclusions. However, the examiner did not provide identifying information about the studies. The examiner further stated that chronic smoking has a higher association with the Veteran’s diagnosed bladder cancer. The Veteran’s representative then submitted another opinion from the March 2017 private physician in October 2018. The physician disagreed with the findings of the VHA examiner and cited to relevant studies and explained why they support his findings and contradict the VHA examiner’s conclusions. The November 2016 VA opinion and the May 2018 VHA opinion, as well as the opinions in March 2017 and October 2018 from the private physician are persuasive as to whether there is a relationship between the Veteran’s current kidney and bladder cancers, and his presumed exposure to Agent Orange. They all considered the facts of the Veteran’s specific case, cited to medical literature, and provide explanations for the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is a question of how medical experts can arrive at opposing outcomes an issue such as the one in this case. However, the Veteran’s burden of proof is one of equipoise and not certainty. Thus, when resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s kidney cancer and bladder cancer are due to presumed in-service herbicide exposure. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for kidney cancer status post right kidney removal and bladder cancer is warranted. 3. Service connection for prostate cancer. Prostate cancer is generally presumed to be due to herbicide exposure under 38 C.F.R. § 3.309(e). However, that presumption is rebutted by affirmative evidence to the contrary in this case. See 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d)(1). All of the probative medical opinions characterize the Veteran’s prostate cancer as a secondary cancer rather than a primary cancer, or as a type of cancer unrelated to Agent Orange that happens to be affecting the prostate. The November 2016 VA examiner found that the Veteran’s prostate cancer was caused by his kidney cancer. In the March 2017 opinion, the private physician explained that the Veteran’s prostate cancer was caused by his bladder cancer, which was reiterated in the October 2018 opinion. The May 2018 VHA physician found that the Veteran’s prostate cancer is a manifestation of transitional cell cancer. He concluded that it is not caused by kidney or bladder cancer. When resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s prostate cancer was caused by his kidney and/or bladder cancer. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102Because these conditions are not service connected, it follows that service connection is warranted for prostate cancer on a secondary basis. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel