Citation Nr: 21002777 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-39 980 DATE: January 14, 2021 ORDER Entitlement to service connection for left renal cell carcinoma is denied. FINDING OF FACT The probative evidence of record demonstrates that the Veteran’s left renal cell carcinoma is not related to an in-service injury or disease, to include herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for left renal cell carcinoma have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to October 1969, with service in the Republic of Vietnam. In a decision dated August 27, 2018, the Board granted the Veteran’s claim for entitlement to service connection for left renal cell carcinoma. The grant of service connection for left renal cell carcinoma was based upon an undated, unsigned medical document received by VA in December 2015. After the issuance of the August 27, 2018, decision, the Board was informed that the allowance of benefits for entitlement to service connection for left renal cell carcinoma was based upon a medical opinion that was not prepared by the Veteran’s medical provider. Reconsideration of a Board decision may be accorded at any time on the Board’s own motion upon allegation of obvious error of fact or law, or allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. See 38 C.F.R. § 20.100. On September 5, 2019, the Board issued an Order of Reconsideration of the August 27, 2018 Board decision, on the issue of entitlement to service connection for left renal cell carcinoma, by an expanded panel of the Board as provided by 38 U.S.C. § 7103(b). The appeal has now been assigned to this three-member reconsideration panel. See 38 C.F.R. § 19.11. In December 2019, the Veteran’s claim for left renal cell carcinoma was remanded by the Board. The Board determined that the Veteran’s claim required additional development, to include a VA examination. That development having been completed, the Veteran’s claim is once again before the Board and will be adjudicated below. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for left renal cell carcinoma The Veteran contends that his left renal cell carcinoma (carcinoma) is related to exposure to herbicides during his service in Vietnam. The Veteran’s service treatment records do not show that this condition began in service. The Veteran was first treated for his carcinoma in 2013. The Veteran’s in-service exposure to herbicide agents is presumed based on his service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Although renal cell carcinoma is not listed among the diseases that are presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), the Veteran may still be entitled to service connection on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). The Veteran’s claims file contains a medical document connecting kidney cancer to Agent Orange exposure. Although the document is unsigned, undated, and does not consider this Veteran’s particular circumstances, the document does contain general medical literature which suggests a connection between kidney cancer and herbicide exposure. The claims file also contains a December 2015 statement from the Veteran’s spouse. His spouse indicated that she heard the doctor state that the Veteran’s cancer was caused by Agent Orange because there were two types of cancer in each kidney. At the time of the December 2019 Board remand, the record lacked a statement directly from this doctor providing this opinion with a rationale discussing the underlying medical principles. As such, the Board determined that the Veteran should be afforded a VA examination. In January 2020, the Veteran was afforded a VA examination for his carcinoma. The examiner marked the box indicating that the Veteran’s condition was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. The examiner provided that renal cell carcinoma is approximately 50 percent more common in men than in women, and occurs predominantly in the 6th or 8th decade of life with median age of diagnosis around 64 years of age. The examiner explained that it is unusual for patients under 40 and rare in children, and risk factors included smoking, hypertension, obesity, polycystic kidney disease, and occupational exposures such as cadmium, asbestosis, petroleum by-products, and others. Based upon a literature review, however, the examiner stated that multiple current and reputable and peer reviewed articles found that there was insufficient evidence to determine whether an association exists between Agent Orange and renal cancers. The examiner also noted that the literature provided by the Veteran in December 2015 in support of a link between renal cancers and Agent Orange exposures had been reviewed, considered, and interpreted to be inconclusive with respect to the Veteran’s scenario and in conjunction with additional documents reviewed. Ultimately, the examiner determined that given the Veteran’s date of birth in 1948, diagnosis of renal cancer in 2013, the Veteran’s age of 65 at diagnosis, and his history of smoking, it could be assumed with at least 50 percent or greater probability that the Veteran’s renal carcinoma was at least as likely as not incurred in or caused by the Veteran’s Agent Orange exposure during service. The Board notes that this opinion has been deemed to be internally contradictory. The examiner largely provided a rationale which corresponded with an opinion finding that the Veteran’s carcinoma was not related to his service, but nonetheless, concluded that it was at least as likely as not that his carcinoma was related to in-service exposure to Agent Orange. The Board assigns low probative weight to this opinion. As this opinion was unclear, an addendum opinion was requested. In August 2020, a VA examiner provided an addendum opinion. The examiner determined that the Veteran’s condition was less likely than not incurred in or caused by the Veteran’s service. The examiner reasoned that the Veteran’s records showed that the Veteran was diagnosed through a finding of elevated creatinine and abnormal ultrasound with bilateral renal masses determined to be renal cell carcinoma, clear cell type specifically to the left kidney. The examiner determined that because of the Veteran’s age of 65 years at diagnosis, and his history of tobacco abuse, there was not significant evidence found in review of medical literature to establish a cause-and-effect relationship between herbicide exposure and kidney cancer. The Board assigns the August 2020 addendum VA opinion high probative weight, as the examiner performed a review of the Veteran’s medical records, relevant medical literature, and provided an adequate rationale for the opinion that the Veteran’s left renal cell carcinoma did not result from herbicide exposure. The Board has considered the Veteran’s and Veteran’s spouse’s lay statements asserting a nexus between his left renal cell carcinoma and service. As lay persons, however, the Veteran and his spouse do not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders. As the record does not reflect that they are experts in carcinomas, any statement regarding the etiology of carcinoma does not have probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board instead places great weight upon the August 2020 VA examiner’s opinion. Regarding the unsigned, undated document that contains general medical literature which suggests a connection between kidney cancer and herbicide exposure, the Board notes that treatise evidence must “not simply provide speculative generic statements not relevant to the Veteran’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. The Board notes that while the unsigned, undated statement provides general information regarding the correlation between kidney cancer and herbicide exposure, it did not consider the Veteran’s specific circumstances and provide a specific opinion as to the etiological nature of the Veteran’s renal cell carcinoma in relationship to his herbicide exposure. Thus, it is not an adequate medical opinion for the purpose of adjudicating the claim, and the Board places low probative weight on it. Upon review of the record evidence, the Board finds that service connection for left renal cell carcinoma, claimed as due to herbicides, is not warranted. The Veteran’s service treatment records do not show that this condition began in service, and records indicate that the condition did not emerge until 2013. The record now contains a probative medical opinion which provides that the Veteran’s carcinoma was less likely than not caused by in-service exposure to herbicides. For the foregoing reasons, the Board finds that service connection for left renal cell carcinoma claimed as due to exposure to herbicides must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.