Citation Nr: 18158316 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-32 552 DATE: December 14, 2018 ORDER Entitlement to service connection for renal cell carcinoma is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for cause of death is remanded. FINDING OF FACT Giving the Appellant the benefit of the doubt, the Veteran’s renal cell carcinoma was caused by his service. CONCLUSION OF LAW The criteria for entitlement to service connection for renal cell carcinoma have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in December 2015 while his claims for service connection for kidney cancer and entitlement to TDIU were still pending. The appellant is the Veteran’s surviving spouse. In December 2015, the RO received the appellant’s VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits, which is also construed as a request to be a substitute claimant in the Veteran’s pending claims. The RO does not expressly grant that request. However, the RO subsequently treated her as the proper substitute and sent her a notice letter in April 2016 where they advised her she could submit additional evidence and indicated additional records had been requested from several sources. In summary, the appellant filed a motion for substitution within one year after the date of the Veteran’s death, and the RO in essence treated her as a substitute. In addition, the record contains credible evidence that the appellant was married to the Veteran at the time of his death and that they had a child together. While the AOJ has yet to make a determination as to the appellant’s eligibility to substitute in the appeal, the undisputed evidence of record shows that the appellant is the Veteran’s surviving spouse and she had a child with the Veteran prior to his death, so is eligible to substitute as the claimant for the purposes of completing the appeal. In this case, the record already establishes that the appellant is an accrued benefits claimant who is eligible for substitution under 38 U.S.C. § 5121A; therefore, the requirement of sending the claim to the AOJ to verify that the appellant is an eligible accrued benefits claimant has been rendered moot, such that sending the case to the AOJ for such verification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). 1. Entitlement to service connection for renal cell carcinoma. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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 veteran 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). The appellant contends that the Veteran’s renal cell carcinoma, which was diagnosed in 2015, was caused by chemical exposures in service, to include from burn pits. The evidence reflects that the Veteran deployed to Kuwait from August to December 2001 and to Iraq between September 2003 and September 2004. On the Veteran’s post-deployment health assessments after his tours in Kuwait and Iraq, the Veteran reported that he was “sometimes” exposed to diethyltoluamide (DEET) insect repellent applied to skin, pesticide-treated uniforms, smoke from oil fire, smoke from burning trash or feces, vehicle or truck exhaust fumes, and paints. After both deployments he also reported he was “often” exposed to Jet Propellant 8 or other fuels and sand/dust. After his Kuwait deployment, he additionally reported sometimes being exposed to environmental pesticides (like area fogging). In an August 2017 affidavit, the Veteran’s spouse stated that when the Veteran was stationed in Iraq, one of his duties was to guard equipment and that he also did some cleaning on base. She stated that the Veteran told her he helped take trash and other debris to a burn pit three to four times per week. The VA acknowledges that burn pits have been used throughout operations in Iraq and Afghanistan to dispose of nearly all forms of waste. Department of Defense performed air sampling at Joint Base Balad, Iraq in 2007 and found particulate matter, polycyclic aromatic hydrocarbons, volatile organic compounds, and toxic halogenated dioxins and furans. The VA acknowledges that some of the polycyclic aromatic hydrocarbons and volatile organic compounds affect the kidneys. See VA Training Letter 10-03. The Board notes that the Veteran’s medical records also reflect a history of smoking, with a number of treatment records indicating that the Veteran began smoking in 1997. In November 2016, a VA doctor reviewed the Veteran’s claims file and opined that it is less likely than not that the Veterans renal clear cell carcinoma was related to his service. He stated that the Veteran has a history of smoking one pack of cigarettes a day for 22 years, and smoking is a risk factor for kidney cancer. He further stated that chemicals listed in the Burn Pits and Particulate Matter Fact sheet were not shown in a literature review to be potential risk factors for cancer. Subsequently, in June 2017, the appellant submitted additional evidence with respect to a link between chemical exposure and the development of renal cell carcinoma. Specifically, the appellant cited to a December 2000 International Journal of Epidemiology article titled “Occupational risk factors for renal cell carcinoma: agent-specific results from a case-control study in Germany” that found that exposure to paints, mineral oils, cutting fluids, benzene, polycyclic aromatic hydrocarbons, and asbestos showed an association with the development of renal cell carcinoma. The appellant has also cited to a May 2002 Occupational Medicine article titled “Renal cell carcinoma and occupational exposure to chemicals in Canada” that found that the risk of renal cell carcinoma increased with duration of exposure to benzene, benzidine, cadmium, herbicides, and vinyl chloride. The appellant noted benzene is among the polycyclic aromatic hydrocarbons found by the Department of Defense on air sampling testing in Iraq. In light of the additional evidence, another VA medical opinion was obtained. In July 2018, a VA urologist reviewed the Veteran’s claim’s file and opined that while the Veteran’s exposure to various chemicals may have increased his risk for renal cell carcinoma, he could not be certain that the renal cell carcinoma was at least as likely as not a result of in-service exposure. The doctor noted the lack of information on the Veteran’s level of in-service chemical exposure. He also stated that the greatest risk factors for renal cell carcinoma are lifestyle-related rather than due to occupational exposures, such as smoking, obesity, and hypertension. The doctor stated that epidemiological studies have suggested that people with exposure to certain hazardous substances, such as arsenic, asbestos, cadmium, some herbicides, benzene/polycyclic aromatic hydrocarbons, and trichloroethylene (TCE), are associated with higher risk for renal cell carcinoma; however, these studies are mostly observational in nature, and the results are inconclusive and conflicting when multiple studies are closely examined. He also noted that the Environmental Protection Agency has labeled DEET as a Group D carcinogen, which means there isn’t substantial proof one way or another that it’s carcinogenic to humans. In addition, he stated that most studies find no link between gasoline exposure and renal cell carcinoma. A private, occupational/environmental physician reviewed the Veteran’s claims file in October 2018 and opined that the Veteran’s renal cell carcinoma was at least as likely as not caused by exposure to multiple carcinogens, including polycyclic aromatic hydrocarbons (PAHs), soots, benzene, tetrachlorodibenzo-P-dioxin (TCDD) and other dioxins, TCE, and diesel fumes while in service. The doctor stated that the Veteran’s military occupational specialty of tank crewman would have exposed him to significant amounts of diesel exhaust, which includes benzene. The doctor noted that renal cell carcinoma is extremely uncommon in individuals under age 45, and the Veteran was only 37 at the time of his death. Given the Veteran’s young age and the short latency of his cancer, the physician opined that it is highly unlikely that only cigarette smoking was responsible for his renal cell cancer. He stated that the burn pits would have exposed the Veteran to soot, which contain a number of known and potentially carcinogenic chemicals. He would also have been exposed to diesel fumes, which include benzene, and other volatile organic compounds, including TCE, as a tank operator. The doctor noted that TCE is a known cause of renal cancer. The private physician noted that the VA doctor who provided the November 2016 opinion reported a smoking history of at least four years greater than that noted in most of the Veteran’s medical records. Also, the private doctor argued that the VA doctor did not acknowledge that the Department of Defense detected TCDD and other dioxin and dioxin like compounds as well as PAHs in air sampling around burn pits. With respect to the opinion offered in July 2018 by the VA urologist, the private physician stated that there are in fact numerous epidemiological studies with respect to occupational and environmental exposures and the development of renal cell carcinoma. The Board finds that private physician’s October 2018 opinion to be based on a well-reasoned rationale and to have a basis in objective supporting data. The opinion at least brings the medical opinion evidence into equipoise as to whether the Veteran’s renal cell carcinoma is related to his service. Therefore, giving the appellant the benefit of the doubt, the Board finds that service connection is warranted. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). As the Board’s grant of entitlement to service connection for renal cell carcinoma above may affect the Veteran’s disability rating, the Board finds that the issue of entitlement to TDIU must be remanded to allow the RO to readjudicate the issue after the RO effectuates the grant of service connection for renal cell carcinoma. 2. Entitlement to service connection for cause of death is remanded. In a September 2017 rating decision, the RO denied service connection for cause of the Veteran’s death. The appellant filed a notice of disagreement with that decision in September 2017. No statement of the case has yet been issued as required. See Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: (Continued on the next page)   1. After effectuating the grant of service connection for renal cell carcinoma, readjudicate the claim for entitlement to TDIU. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 2. Send the appellant a statement of the case (SOC) concerning her claim for service connection for cause of death. If, and only if, she submits a timely substantive appeal in response to the SOC, thereby perfecting her appeal as to the claim, should it be returned to the Board for further appellate consideration. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen