Citation Nr: 18154533 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-22 015 DATE: November 30, 2018 ORDER Entitlement to service connection for metastatic renal cell carcinoma (also claimed as growth on right kidney) is denied. Entitlement to service connection for bladder cancer is denied. FINDINGS OF FACT 1. Symptoms of the metastatic renal cell carcinoma first manifested many years after service separation and are not causally or etiologically relate to active service, to include in-service exposure to herbicide agents. 2. Symptoms of the bladder cancer first manifested many years after service separation and are not causally or etiologically relate to active service, to include in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for metastatic renal cell carcinoma (also claimed as growth on right kidney) have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for bladder cancer have not been met. 38 U.S.C. §§ 1102, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 15, 1958 to July 31, 1978 with service in Vietnam. The Veteran passed away in October 2013; his wife has been substituted as the appellant for purposes of processing the appeal to completion. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant initially requested an in-person hearing before a Veterans Law Judge. However, in July 2015, the appellant indicated that she wished to withdraw her hearing request. Under 38 C.F.R. § 20.704(e), a request for a hearing may be withdrawn by at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. 1. Entitlement to service connection for metastatic renal cell carcinoma (also claimed as growth on right kidney) is denied. The appellant contends that the Veteran’s renal cell carcinoma was caused by the Veteran’s service, to include his alleged exposure to herbicide agents such as Agent Orange. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, it must be shown that there was: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307 (a)(6). A Veteran who served in qualifying locations during defined periods, to include Vietnam, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iii). If the Veteran is presumed to have been exposed to herbicide agents, the Veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309 (e). This presumption is specifically limited to those diseases listed. Id. VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Notwithstanding the presumption, service connection for a disability claimed as due to herbicide agent exposure may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. Service connection may also be presumed for certain chronic diseases, including malignant tumors, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that every manifestation which occurs in service will permit service connection. In contrast, to show chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303 (b). Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, although the Board notes that the Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to herbicide agents, presumptive service connection is not available under 38 C.F.R. § 3.309 (e) for the Veteran’s renal cell carcinoma as renal cell carcinoma is not included on the list of conditions deemed presumptive. Accordingly, the Board finds that service connection for the Veteran’s renal cell carcinoma cannot be granted under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309. Despite this, service connection for the Veteran’s renal cell carcinoma may still be established on the basis of direct causation. Combee, 34 F.3d 1039. The evidence does not show that the Veteran’s renal cell carcinoma was caused by his active service, to include his exposure to herbicide agents. That is, there is no evidence that the renal cell carcinoma occurred in service or is due to any other service-related incident. The Veteran was not assessed with renal cell carcinoma until 2011, over three decades after his discharge from active service. By his own assertions, the Veteran’s renal cell carcinoma was discovered after he began having blood in his urine which did not occur until July 2011. See September 2012 Compensation and Pension Examination. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Further, none of the Veteran’s medical providers have indicated that the Veteran’s exposure to herbicide agents caused his kidney disorder. See e.g. July 2011 VA Treatment Records; September 2012 Compensation and Pension Examination. Thus, the evidence of record does not support a finding that the Veteran’s renal cell carcinoma was directly caused by his active service, to include herbicide agent exposure. In addition, there is no evidence of renal cell carcinoma manifesting to a compensable degree within one year of military discharge, nor was there continuity of symptomology since separation from service. Instead, as stated above, the Veteran’s renal cell carcinoma began to manifest in July 2011 which was many years after the Veteran left active service in 1978. See September 2012 Compensation and Pension Examination. Therefore, service connection for the Veteran’s metastatic renal cell carcinoma must be denied. In assessing the evidence, the Board acknowledges the appellant’s opinion that her husband’s renal cell carcinoma was “directly related to his exposure to Agent Orange in Vietnam regardless of whether they are listed as presumptive diseases”. See VA Form 9. The Board reiterates that it is bound by the fact that presumptive service connection is specifically limited to those diseases listed. See 38 C.F.R. § 3.309 (e). The Board also notes that the appellant is competent to provide evidence regarding the symptoms the Veteran exhibited prior to his passing. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). However, as the appellant’s lay statements relate to the etiology of the Veteran’s renal cell carcinoma, the Board is unable to afford the appellant’s lay statement probative weight because she is not competent to render a medical diagnosis or opinion on such a complex medical question. See Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis). The appellant has not shown that she has such specialized medical knowledge, training, or expertise. The Board finds that service connection is not warranted on a direct or presumptive basis or based on continuity of symptomatology for the renal cell carcinoma. It has not been argued, and the medical evidence does not show, that this condition manifested to any degree or was diagnosed during the Veteran’s active duty service. Further, it is uncontroverted that the Veteran’s renal cancer did not manifest until approximately 33 years following service separation. The record reflects that the Veteran was not diagnosed and treated for renal cell carcinoma until 2011 and 2012. See Private Treatment Records received June 2012. As there is also no evidence of in-service injury or manifestation within the first post service year, service connection for this disability is not warranted in this case. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The Board has also noted that in this case, while the immediate cause of death was determined to be renal cell carcinoma, there were secondary conditions listed on the death certificate which include the claimed bladder cancer addressed below and the Veteran’s service-connected neuropathy related to his diabetes mellitus. See October 2013 Death Certificate. The Board has therefore also considered the possibility that the Veteran’s renal cancer was secondary to his service-connected neuropathy related to his diabetes mellitus. However, it was noted at the September 2012 Compensation and Pension Examination that the two were not related because “diabetes mellitus does not cause renal cancer”. As such, the evidence does not show that the Veteran’s renal cell carcinoma was caused or aggravated by his service-connected neuropathy related to his diabetes mellitus. The Board also notes that the September 2012 Compensation and Pension examiner did not opine further regarding the etiology of the Veteran’s renal cell carcinoma. However, even if the examiner did not provide a complete explanation, a remand on this basis would be of no benefit to the appellant. As noted above, the Board affords great probative weight to the medical evidence on record which indicates that the Veteran’s renal cell carcinoma was not related to service. Thus, in the absence of medical evidence linking the claimed disability to service, there is no basis to establish service connection and further analysis is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the Veteran.”). Similarly, while the Veteran’s service treatment records are not contained with the record, both the private records and VA treatment records contained in the record, as well as the appellant’s own statements, affirmatively indicate that the Veteran’s renal cell carcinoma was diagnosed many years post-service. The Veteran’s recorded medical history is also absent for conditions related to his kidneys prior to June 2011 when his hematuria was first noted. See July 2011 VA Treatment Records. The Board has determined that the record contains sufficient evidence regarding the onset of the Veteran’s renal cell carcinoma and as such, the Board has adequate competent evidence to assess that the Veteran’s renal cell carcinoma occurred many years post-service. As the weight of the competent and probative evidence does not demonstrate a nexus between the Veteran’s renal cell carcinoma and service, the Board finds that service connection for the Veteran’s renal cell carcinoma is not warranted. Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 2. Entitlement to service connection for bladder cancer is denied. The appellant also asserts that the Veteran’s bladder cancer was caused by his exposure while on active duty in Vietnam to herbicide agents, to include Agent Orange. The record demonstrates that the Veteran was diagnosed and treated for bladder cancer in 2011. See e.g. September 2012 Compensation and Pension Examination. Further, the Veteran’s bladder cancer was discovered via MRI and CT scan in conjunction with his renal cell carcinoma after the Veteran reportedly discovered blood in his urine in July 2011. See id. As bladder cancer is not one of the conditions presumed to be linked to herbicide agent exposure, we cannot establish service connection for bladder cancer as due to herbicide agent exposure. Further, the appellant has not asserted and the evidence does not otherwise show that the Veteran developed the disease during service or otherwise incurred some injury to which the 2011 cancer could be etiologically linked while he was on active duty, which ended in 1978. The Board further notes that bladder cancer qualifies as a cancer of the urinary tract, which is among the disabilities enumerated under 38 C.F.R. § 3.309 (d) as a disease for which service connection may be presumed for a radiation-exposed Veteran. The appellant has not asserted, and the record does not otherwise demonstrate that the Veteran experienced exposure to radiation during his active military service. Absent any competent or credible evidence of an in-service event, injury or disease, or relevant exposure, service-connection cannot be awarded on either a direct or presumptive basis. The Board has also considered the fact that no VA examiner has opined regarding the Veteran’s bladder cancer. However, a remand for further investigation would be fruitless for many of the same reasons stated above for the claimed renal cell carcinoma. See Soyini, 1 Vet. App. 540, 546. Additional medical evidence is, unfortunately, unobtainable, and there is no existing evidence linking the claimed disability to the Veteran’s service. As such, a remand would serve only to delay the outcome of this claim while offering no benefit to the appellant. See id. The Board is sympathetic to the appellant’s assertions. However, as the weight of the evidence is against a finding that the Veteran’s bladder cancer arose during service or that he experienced an in-service injury or event to which his bladder disability might be etiologically related, service connection for residuals of bladder cancer must be denied. See 38 C.F.R. § 3.303. Further, presumptive service connection is not warranted because bladder cancer is not one of the conditions specifically listed as a presumptive condition, nor is there competent and credible evidence of bladder cancer occurring within one year following discharge from active service. 38 C.F.R. § 3.307, 3.309(a). (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable, as there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk