Citation Nr: 20007945 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-54 412 DATE: January 30, 2020 ORDER Service connection for bilateral renal cell carcinoma is denied. FINDING OF FACT Bilateral renal cell carcinoma was not first manifested on active duty or within any applicable presumptive period, and is not shown to otherwise be related to service. CONCLUSION OF LAW The criteria for service connection of bilateral renal cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1116A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1962 to October 1970, including service in the Republic of Vietnam. He timely appealed this matter from an October 2017 rating decision. 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Renal cell carcinoma is not a listed chronic disease. For herbicide exposed Veterans, as here, service connection may be presumed for diseases identified in a separate list. While multiple forms of cancer are among these, renal cancers are not. 38 C.F.R. § 3.309(e). Finally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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.A. § 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. The Veteran seeks service connection for bilateral renal cell carcinoma, and has asserted that the claimed disability is secondary to his service-connected diabetes mellitus. The Board first notes that there is no medical evidence linking renal cell carcinoma with diabetes. While the Veteran has made such allegation, he is a layperson, and lacks the specialized skill and knowledge needed to render a valid opinion on etiology. Further, he has not provided any evidence, such as articles or cited studies, indicating such a relationship. While service connection is therefore not warranted on the basis alleged, the Board will also consider all other potentially applicable theories of entitlement. Service treatment records do not reflect any findings or complaints of bilateral renal cell carcinoma. A VA Agent Orange protocol examination in July 2005 reveals that the Veteran served with the inshore undersea warfare group both in Cam Rahn Bay and Na Trang. He reported being in areas recently sprayed with herbicides. The Veteran’s exposure to herbicides has been conceded. Service connection has been awarded for diabetes mellitus with erectile dysfunction, effective August 4, 2005. Private records show a diagnosis of renal cell carcinoma in 2017, and that the Veteran underwent a right-sided radical nephrectomy with adrenalectomy. He was then diagnosed and treated for left renal masses. In March 2018, the Veteran’s surgeon noted the Veteran’s history of exposure to herbicides in active service; and noted several epidemiological studies linking exposure to development of various future cancers, and noted other studies suggesting weak links between herbicide exposure and renal cell carcinoma. The physician opined that the Veteran’s bilateral renal cell carcinoma could or could not have been caused by herbicide exposure in active service. This opinion is speculative in nature and based solely on possibility, and inadequate for an award of service connection. In a November 2018 addendum, the same doctor reported that two left renal masses were cryo-ablated in June 2018. He then opined that it is at least as likely as not that the bilateral renal cell carcinoma was caused by the Veteran’s exposure to herbicides in active service. No rationale for the opinion was provided, nor was an explanation for the marked change in opinion provided. More recent VA records, dated in August 2019, show a diagnosis of chronic kidney disease stage 3/4; and indicates that chronic kidney disease is due to loss of renal mass with nephrectomy from renal cell carcinoma, diabetes mellitus, and hypertension. This statement relates current kidney dysfunction to diabetes, but does not relate the carcinoma to the diabetes. In August 2019, a VA medical opinion was obtained following review of the claims file and examination of the Veteran. The examiner cited the private, positive medical opinion and the ongoing treatment records. The doctor opined that in light of research and studies from the Institute of Medicine (IOM), there was inadequate and insufficient evidence to relate renal cancer to herbicide exposure. Moreover, the examiner stated that there were no studies supportive of a direct link between renal cancer and herbicide exposure. She therefore opined that a nexus was less likely than not. The Board finds the negative VA medical opinion persuasive. It is the only competent opinion based on cited, authoritative studies. At best, the private opinion is based on studies showing only a “weak” link, and it fails to explain how such justifies the given opinion. There is no other competent evidence linking renal carcinoma to service, to include as secondary to diabetes or due to herbicide exposure. Accordingly, service connection for renal cell carcinoma is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.