Citation Nr: 20054635 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 12-16 290 DATE: August 18, 2020 ORDER Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran had service in Vietnam; therefore, he was presumptively exposed to herbicide agents during his active service. 2. During the Veteran’s lifetime, service connection was not in effect for any disabilities. 3. The Veteran died in July 2010; the certificate of death reflects that the immediate cause of death was respiratory failure due to or as a consequence of pulmonary metastatic disease due to or as a consequence of renal cell carcinoma. 4. The Veteran’s renal cell carcinoma was at least as likely as not etiologically related to his exposure to herbicide agents during active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to DIC based on service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to May 1970. Unfortunately, the Veteran died in July 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in January 2015, June 2017, and April 2019. In its January 2015 decision, the Board denied the appellant’s claim for entitlement to accrued benefits and remanded the issue of entitlement to DIC based on service connection for the Veteran’s death for a VA medical opinion. In its June 2017 and April 2019 decisions, the Board remanded the matter for additional development and to ensure compliance with the Board’s prior remand directives. The matter has now returned to the Board for further appellate consideration. In July 2013, the appellant testified at a videoconference hearing before another Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In June 2020, VA notified the appellant that the Veterans Law Judge before whom she testified was no longer acting in a Judge capacity and provided her the opportunity to request another Board hearing. In July 2020, VA received the appellant’s response that she did not wish to appear at another Board hearing and that the case should be considered on the evidence of record. Therefore, the Board will proceed accordingly. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to DIC based on service connection for the cause of the Veteran’s death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312(a). To establish service connection for the cause of a Veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). Malignant tumors (in this case, renal cell carcinoma) are listed as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that where a Veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Certain diseases are associated with herbicide agent exposure and shall be service-connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. As pertinent here, renal cell carcinoma is not among the enumerated diseases under 38 C.F.R. § 3.309(e); therefore, presumptive service connection based on herbicide agent exposure is not for application. Despite this, the appellant may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this matter, the appellant asserts that she is entitled to DIC based on service connection for the cause of the Veteran’s death. Specifically, she asserts that his renal cell carcinoma was caused by exposure to Agent Orange during active service. Additionally, the Board noted in its June 2017 decision that “the Veteran was most likely exposed to asbestos inservice as an aviation machinist’s mate.” Accordingly, this theory of entitlement has also been raised and developed. The Board notes that the Veteran’s exposure to herbicide agents during his military service is already established. In its January 2015 decision, the Board found that the Veteran was presumptively exposed to herbicide agents while serving in the Republic of Vietnam. This finding constitutes the law of the case as to the Veteran’s exposure to herbicide agents. See DiCarlo v. Nicholson, 20 Vet. App. 52, 57 (2006). Thus, the remaining question before the Board is whether there is a competent evidence of a nexus between the Veteran’s service and his death. During the Veteran’s lifetime, service connection was not in effect for any disabilities. The Veteran’s July 2010 certificate of death reflects that the immediate cause of death was respiratory failure due to or as a consequence of pulmonary metastatic disease due to, or as a consequence of, renal cell carcinoma. As mentioned previously, renal cell carcinoma is not among the enumerated diseases under 38 C.F.R. § 3.309(e); therefore, presumptive service connection based on herbicide agent exposure is not for application. Despite this, the appellant may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Turning to the evidence, in July 2011 and July 2013, the appellant submitted internet articles referencing a 2011 study conducted by researchers at the VA Medical Center in Shreveport, Louisiana which indicated there may be a connection between veterans’ in-country exposure to herbicide agents and subsequent development of renal cancer. The findings of this study were presented during a special news conference at the American Urological Association annual meeting. In July 2013, the appellant submitted copies of prior Board decisions pertaining to other veterans who also claimed entitlement to service connection for renal cell carcinoma based on exposure to herbicide agents. In one of the decisions, dated May 2011, the Board noted that Dr. F.M., MD, indicated that Agent Orange was most likely the cause of the veteran’s aggressive renal cell cancer at such a young age and opined that if Agent Orange was not the initiating cause of the veteran’s cancer, it most likely played a very important component in the development of the malignancy. The Board also noted that a VA physician opined that while “[t]he medical information linking renal cancer to Agent Orange is not strong,…it is at least as likely as not that the Veteran’s renal cancer was due to exposure to Agent Orange…” with the rationale being that there was no evidence to show that there was no relationship between renal cancer and Agent Orange. Additionally, the Board referenced a positive nexus opinion by Dr. C.B., MD, wherein Dr. C.B. considered a meta-analysis done of studies concerning Agent Orange and renal cancer revealing 35 studies with a relative risk greater than or equal to 1, and only 9 studies with a relative risk less than 1. As such, Dr. C.B. determined that a relative risk greater than 1 satisfied the legal requirement of “as likely as not,” and accordingly opined that the veteran’s kidney cancer more likely than not was caused by his exposure to Agent Orange in service for several reasons, including that the veteran entered service fit for duty, that he was exposed to Agent Orange, that he developed kidney cancer at a young age and died from the cancer in July 1999, that the literature supports an association between exposure to Agent Orange and kidney cancer, and that the veteran’s record contains no other plausible cause for his cancer. In another Board decision, dated September 2012, Dr. J.B., a specialist in internal medicine, opined that it was more likely than not that there was a nexus between the veteran’s development of papillary renal cell cancer and his Agent Orange exposure during service, relying in part on the 2011 study presented to the American Urological Association indicating that there may be a link between a veteran’s exposure to Agent Orange and his subsequent development of renal cancer. Dr. J.B. further explained that since the genitourinary system (including kidneys and prostate) develops from similar tissue in fetuses, it is not surprising that Agent Orange would lead to cancers in more than one anatomic area within the genitourinary system, similar to how cancer in several sites of the alimentary-gastrointestinal system develop as a result of toxins such as alcohol and smoking. It is noted that prior Board decisions are non-precedential. In an August 2013 letter, Dr. M.M., the Veteran’s private oncologist, wrote, “[The Veteran] was a patient of mine at Rocky Mountain cancer centers in Colorado Springs, Colorado until the time of his death in July 2010. The patient was diagnosed with renal cell carcinoma at age 40. He then developed widespread metastatic disease which ultimately took his life despite aggressive, systemic therapy. As for the cause of his renal cell carcinoma, while this is rarely 100% clear, it is likely that his exposure to Agent Orange was a significant contributing factor for the development of this disease.” According to information available to the public on the internet, Dr. M.M. is board certified in medical oncology, internal medicine, and hematology. In September 2015, VA obtained a medical opinion from Dr. C.T., MD. After a review of the Veteran’s claims file, Dr. C.T. opined as follows: “I have reviewed the available scientific and medical literature (References 1, 2) on Agent Orange and Renal Cell Carcinoma. I was unable to find conclusive medical evidence that links Agent Orange exposure to the development of Renal Cell Carcinoma. I have also reviewed the 2012 Update on the Health effects of Agent Orange by the Institute of Medicine (Reference 3). The Institute of Medicine reviews new and emerging data regarding health effects of Agent Orange on Vietnam Veterans on a biennial basis. Based on the last published update (2012), there is insufficient data to suggest a link between Agent Orange and Kidney cancer. In addition, it is now recognized that even in the absence of a positive family history, a genetic cause for renal cell carcinoma can be found in a significant percentage of patients. As an example, patients with renal cell carcinoma who carry the Von-Hippel-Lindau mutation have a new mutation in 25% of the cases, i.e. they are the first member of the family with this mutation. It is now also thought that patients who are diagnosed with Renal cell carcinoma before the age of 40 have a high likelihood of developing a second renal cell cancer in the opposite kidney and most likely have a genetic abnormality predisposing them to the development of kidney cancer (Reference 4). Therefore, I disagree with Dr. [M.M.’s] opinion. In my opinion it is more likely than not that his renal cancer is NOT related to Agent Orange Exposure.” In July 2018, June 2019, and September 2019, VA medical opinions were obtained as to whether there was a nexus between the Veteran’s renal cell carcinoma and his exposure to asbestos during service (or to post-service exposure to asbestos and a history of tobacco use). These opinions do not comply with the Board’s prior remand directives as they were not rendered by an oncologist. Therefore, the Board will not address the sufficiency of these opinions. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In March 2020, a VA examiner, an oncologist, was asked the following: (1) “Is it at least as likely as not that the Veteran’s renal cell carcinoma was due to his presumed exposure to asbestos while on active duty?”; and (2) “Is it more likely than not that the Veteran’s renal cell carcinoma was due to his post-service exposure to asbestos at a power plant and/or history of cigarette smoking?” As to the first question, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, and in his rationale, he mentioned, “the tobacco history is far more likely to be the cause than exposure as a mechanic to asbestos,” and concluded, “It’s NOT more likely than not that a causal relationship existed.” As to the second question, the VA examiner ultimately opined, “The hypernephroma was far more likely to have been tobacco-related [although this association isn’t as tight as is that with lung cancer] than to have been from asbestos-exposure; employing the conceptualizaiton (sic) that there may have been a ‘30%’ risk increase [from a cited article] or that there may have been ‘some’ risk increase doesn’t exceed the ‘more likely than not’ threshold.” On review, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran’s renal cell carcinoma was etiologically related to his exposure to herbicide agents during active service. First, the Board finds adequate and highly probative Dr. M.M.’s August 2013 opinion that “[a]s for the cause of [the Veteran’s] renal cell carcinoma, while this is rarely 100% clear, it is likely that his exposure to Agent Orange was a significant contributing factor for the development of this disease.” Dr. M.M. is a medical doctor that is board certified in medical oncology, internal medicine, and hematology, and was the Veteran’s treating oncologist until his death in July 2010. Although the Court of Appeals for Veterans Claims has expressly rejected a “treating physician rule” under which a treating physician’s opinion would presumptively be given greater weight than that of any other examiner, a medical professional’s opportunity or opportunities to examine a claimant over time may be considered in assigning probative weight. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Furthermore, the Board notes that Dr. M.M. was not required to find that exposure to Agent Orange was the sole or definite cause of the Veteran’s development of renal cell carcinoma; instead, his opinion indicated that the Veteran’s in-service exposure was likely one of the causes contributing to his development of renal cell carcinoma. Second, while prior Board decisions regarding different veterans are non-precedential, the Board finds that the medical opinions posited by medical doctors in those decisions, which involved factual situations similar to the instant claim, lend at least some measure of support to the appellant’s claim. Notably, in a May 2011 Board decision, similar to Dr. M.M.’s opinion in this case, Dr. F.M. opined that if Agent Orange was not the initiating cause of that veteran’s renal cancer, it most likely played a very important component in the development of the malignancy. Also in the May 2011 Board decision, the Board referenced a positive nexus opinion by Dr. C.B. who considered a meta-analysis done of studies concerning Agent Orange and renal cancer revealing 35 studies with a relative risk greater than or equal to 1, and only 9 studies with a relative risk less than 1. As such, Dr. C.B. determined that a relative risk greater than 1 satisfied the legal requirement of “as likely as not,” and accordingly opined that the veteran’s kidney cancer more likely than not was caused by his exposure to Agent Orange in service for several reasons, including that the veteran entered service fit for duty, that he was exposed to Agent Orange, that he developed kidney cancer at a young age and died from the cancer in July 1999, that the literature supports an association between exposure to Agent Orange and kidney cancer, and that the veteran’s record contains no other plausible cause for his cancer. In another Board decision, dated September 2012, Dr. J.B., a specialist in internal medicine, opined that it was more likely than not that there was a nexus between the veteran’s development of papillary renal cell cancer and his Agent Orange exposure during service, relying in part on the 2011 study presented to the American Urological Association indicating that there may be a link between a veteran’s exposure to Agent Orange and his subsequent development of renal cancer. Dr. J.B. further explained that since the genitourinary system (including kidneys and prostate) develops from similar tissue in fetuses, it is not surprising that Agent Orange would lead to cancers in more than one anatomic area within the genitourinary system. Given the factual similarities between the veterans in these decisions and the instant Veteran, and the medical literature and principles referenced by competent medical professionals supporting an association between exposure to Agent Orange and renal cancer, the Board finds that the aforementioned excerpts from prior Board decisions, while non-precedential, weigh in favor of the appellant’s claim. Third, the Board finds it significant that the March 2020 VA examiner, an oncologist, opined that the Veteran’s renal cell carcinoma was not more likely than not due to his post-service exposure to asbestos at a power plant and/or history of cigarette smoking, reasoning that while the renal cell carcinoma “was far more likely to have been tobacco-related…than to have been from asbestos-exposure,” the risk increase due to both exposures does not exceed the more likely than not threshold. Fourth, the Board acknowledges the September 2015 medical opinion VA obtained from Dr. C.T. wherein she explicitly disagreed with Dr. M.M.’s opinion and found that “it is more likely than not that his renal cancer is NOT related to Agent Orange Exposure.” However, the Board has identified deficiencies in the rationale for her opinion. In support of her opinion, Dr. C.T. indicated that she “was unable to find conclusive medical evidence that links Agent Orange exposure to the development of Renal Cell Carcinoma.” (emphasis added). The Board notes that “conclusive medical evidence” is not the appropriate evidentiary standard here. Furthermore, Dr. C.T. wrote, “it is now recognized that even in the absence of a positive family history, a genetic cause for renal cell carcinoma can be found in a significant percentage of patients. As an example, patients with renal cell carcinoma who carry the Von-Hippel-Lindau mutation have a new mutation in 25% of the cases, i.e. they are the first member of the family with this mutation. It is now also thought that patients who are diagnosed with Renal cell carcinoma before the age of 40 have a high likelihood of developing a second renal cell cancer in the opposite kidney and most likely have a genetic abnormality predisposing them to the development of kidney cancer.” Even so, Dr. C.T. did not address whether the Veteran in this case carried the Von-Hippel-Landau mutation or otherwise had a genetic abnormality predisposing him to the development of kidney cancer. Thus, the Board affords less probative value to Dr. C.T.’s September 2015 medical opinion. For these reasons, and after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to DIC based on service connection for the Veteran’s death is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.