Citation Nr: 20021983 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-43 588 DATE: March 30, 2020 ORDER Entitlement to service connection for renal cell carcinoma, status post left partial nephrectomy, is granted. FINDING OF FACT The Veteran’s renal cell carcinoma is caused by his exposure to herbicide agents, to include Agent Orange. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma, status post left partial nephrectomy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 1971 to December 1974, including service in the Republic of Vietnam (RVN). This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) October 2013 rating decision of the Agency of Original Jurisdiction (AOJ). In November 2018 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the November 2018 Board remand, the Board finds that the AOJ conducted additional development as directed by the November 2018 remand, and that there has been substantial compliance with the Board’s remand. 1. Entitlement to service connection for renal cell carcinoma, status post left partial nephrectomy The Veteran seeks service connection for renal cell carcinoma, or kidney cancer, claimed as due to herbicide exposure while in the RVN during the Vietnam era. The Board notes that the evidence has established that the Veteran was in Saigon in April 1972, and thus exposure to herbicide agents is conceded. Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve any reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. If a veteran was exposed to herbicide agents during active military, naval, or air service, certain specified diseases may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307 (d), 3.309(e). However, the Board notes that renal cell carcinoma is not such a presumptive disorder. Nonetheless, service connection may be warranted on a direct basis if the evidence supports the determination. The Veteran was diagnosed with renal cell carcinoma, and is currently status post left-partial nephrectomy. The Board finds that this is sufficient to fulfill the first Shedden requirement to establish service connection. As noted above, the Veteran was exposed to herbicide agents while in Saigon during April 1972. This fulfills the second Shedden requirement necessary to establish service connection. What is left to determine is whether the Veteran’s renal cell carcinoma was caused by his exposure to herbicide agents while in the RVN. In April 2019 the Veteran underwent a VA examination to determine the etiology of his kidney cancer. The examiner noted that while the Veteran did not use tobacco products nor drink alcohol, both of which are possible contributors to the development of renal conditions, the kidney cancer was “more likely” caused by “genetic mutation.” The examiner then cited to a www.cancer.org website that gives a general overview of kidney cancer. The Board notes that the website the examiner cites to discusses kidney cancer generally, and does not address the Veteran’s exposure to herbicide agents specifically. The cancer.org website also notes that “exposure to cancer-causing chemicals … play a role in causing” the types of genetic mutations that would in turn cause kidney cancer. While herbicide agents, such as Agent Orange, have not been shown to presumptively cause kidney cancer, they are a cancer-causing agent. In December 2019 the Veteran submitted a statement from Dr. A., an oncologist. According to Dr. A., the April 2019 examiner’s conclusions are incorrect. Dr. A. notes that the Veteran has “no family history of kidney problems, including renal cell carcinoma.” Dr. A. also noted that the Veteran had none of the risk factors addressed by the website the April 2019 examiner cited to. Per Dr. A., Agent Orange contains dioxin, “a highly toxic and persistent organic pollutant linked to multiple cancers.” Dr. A. then cites to a medical study conducted by researchers at a VA medical center that indicates a connection between exposure to Agent Orange and the subsequent development of renal cancer. In conclusion, Dr. A. states that the Veteran’s “kidney cancer was as likely as not caused by exposure to Agent Orange.” This conclusion was “based on the available medical literature” as well as a review of the Veteran’s claims file. While the Board has no reason to find the April 2019 VA examiner neither competent nor credible, the Board does not that the examiner’s opinion is based on a general understanding of the possible causes of renal cancer. Additionally, the VA examiner does not specifically address why, or why not, the Veteran’s exposure to herbicide agents such as Agent Orange may or may not have contributed to his subsequent renal cell carcinoma. Dr. A. specifically addressed how cancer-causing chemicals in Agent Orange, such as dioxin, have been shown to lead to kidney cancer in individuals with no other risk factors, such as the Veteran. Based on the foregoing, the Board finds that Dr. A.’s medical opinion has more probative value than that of the April 2019 VA examiner’s opinion. The Board is not bound by the medical determination of a VA examination. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board finds that the criteria for establishing service connection for renal cell sarcoma, status post left-partial nephrectomy, have been met. Accordingly, the Board resolves all doubt in favor of the Veteran, and service connection for the Veteran’s kidney disability is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. At 54. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate Counsel 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.