Citation Nr: 18154733 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-58 052 DATE: December 3, 2018 ORDER New and material evidence having been received, the previously denied claim of service connection for kidney cancer is reopened. Service connection for kidney cancer is granted.   FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam and was exposed to herbicides such as Agent Orange. 2. The Veteran’s kidney cancer is causally related to service, including his herbicide exposure. CONCLUSION OF LAW The criteria for service connection for renal cell cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1966 to June 1968. The case is on appeal from a June 2013 rating decision. The appeal had two certified issues but they were essentially both for the same condition—kidney cancer. Thus, the Board finds that there is one issue on appeal. 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for kidney cancer. The Board will first address whether the previously denied claim of service connection for kidney cancer should be reopened. Prior to the current claim, in an October 2002 rating decision, the claim of service connection for kidney cancer was denied on the merits. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in March 2012. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the October 2002 rating decision. Evidence and correspondence was received within that year, but they pertained to other compensation and dependency claims. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for kidney cancer is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also September 2012 private medical report (providing a positive nexus opinion). The reopened claim is further addressed below. 2. Service connection for kidney cancer. The Veteran contends that his kidney cancer, which was diagnosed in 2001, is related to his service, including his significant exposure to Agent Orange. 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. “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran who served in the Republic of Vietnam during the requisite time period is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for certain diseases is presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Even without a diagnosed presumptive condition, a veteran is entitled to service connection if he can establish that a disability warrants service connection on a direct-incurrence basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis The Veteran maintains that his kidney disorder is the result of his active service, including his exposure to herbicides during his service in Vietnam. He asserted in a September 2012 statement that he was continually exposed to Agent Orange during service, including being sprayed directly with Agent Orange. Initially, the Board notes the Veteran’s service personnel records (SPRs) show that he served in Vietnam and thus, exposure to herbicides is presumed. Although kidney cancer is not a presumptive condition, direct service connection may still be established, including if a nexus between his herbicide exposure and kidney cancer is supported. A September 2012 private medical was submitted from Dr. B.S. He indicated the Veteran underwent a left radical nephrectomy in 2001 for a 5.5 centimeter Grade 3 renal cell carcinoma. He reported the Veteran is also a Vietnam veteran and had significant exposure to Agent Orange during his service. He stated Agent Orange and renal cell carcinoma have a relationship that has been shown in many Vietnam veterans. He concluded Agent Orange had an influence in the formation of the Veteran’s cancer. Dr. B.S. submitted a July 2013 opinion in which he stated the Veteran had a recurrence of his kidney cancer in 2009 and noted there is a link between his Agent Orange exposure and renal cell carcinoma. He further indicated medical literature supports that renal cell cancer is related to Agent Orange exposure and many veterans who are exposed to Agent Orange present with kidney cancer. The Veteran was afforded a June 2013 VA examination in which he was diagnosed with chronic kidney disease. The examiner concluded the Veteran’s kidney disorder is due to his service-connected hypertension. Additionally, a September 2016 private medical opinion was submitted by Dr. R.T. He indicated it is as likely as not that the Veteran’s renal cancer was caused by his exposure to Agent Orange during service. The Board finds the medical opinions compelling and determines the Veteran’s kidney cancer is related to service, including his exposure to Agent Orange. The Board finds the medical opinions of Dr. B.S. to be persuasive and of the greatest probative value. Such opinions are supported by medical literature and present an accurate history with well-reasoned explanations. As such, these positive opinions are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is persuasive medical expert evidence for and against the claim. Thus, the evidence is at least in equipoise as to the nexus element and, when resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s kidney cancer is related to his active service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for renal cell cancer. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel