Citation Nr: 21003253 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-19 089 DATE: January 21, 2021 ORDER Entitlement to service connection for metastatic renal cell carcinoma is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era. 2. The evidence is at least in equipoise as to whether the Veteran’s diagnosed metastatic renal cell carcinoma is etiologically related to his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for metastatic renal cell carcinoma have been met. 38 U.S.C. §§1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1963 to September 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for renal cell carcinoma with metastasis. In May 2017, the Veteran disagreed with the RO’s decision. A Statement of the Case was issued in May 2019 and a timely substantive appeal was received in June 2019. In November 2020, the Veteran testified at a telehearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for metastatic renal cell carcinoma. The Veteran contends that his metastatic renal cell carcinoma is at least as likely as not caused by his presumed exposure to herbicide agents while serving in the Republic of Vietnam. See e.g., January 2017 VA 21-526, Fully Developed Claim (Compensation); November 2020 Hearing Transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent such as Agent Orange, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are presumed to be associated with herbicide agent exposure are AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin’s disease; ischemic heart disease; chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). Id. The enumerated diseases do not include renal cell carcinoma. The Veteran, however, may still establish service connection by showing that any such disability is, in fact, directly and causally linked to herbicide exposure. Brock v. Brown, 10 Vet. App. 155 (1997). After considering the evidence of record, the Board concludes that the criteria for service connection for metastatic renal cell carcinoma have been met. The clinical evidence of record establishes that the Veteran was diagnosed as having metastatic renal cell carcinoma in 2016. Thus, the first element of service connection, a current disability, is satisfied. In addition, the Veteran had service in the Republic of Vietnam during the Vietnam era. Absent evidence to the contrary, he is legally presumed to have been exposed to an herbicide agent during such service. Thus, the second element for service connection, an in-service injury, has been met. The Board now turns to the third element for service connection, the nexus requirement. The Veteran was afforded a VA examination in April 2017. The examiner concluded that the Veteran’s renal cell carcinoma is “less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness” because “there are no presumptive diseases of the kidney that are currently linked from exposure to Agent Orange.” In an April 2019 letter, however, J.C., M.D., the Veteran’s VA treating oncologist explained that the Veteran did not have a family history or other risk factors for renal cell cancer. Dr. J.C. stated that Veteran’s only potential risk factor for renal cell carcinoma is his exposure to Agent Orange. Dr. J.C. indicated that his practice is seeing an “increasing number of Agent Orange exposed Vietnam Veterans presenting with renal cell carcinoma.” In reviewing formal studies, Dr. J.C. opined that although studies have not been conclusive in linking renal cell carcinoma to Agent Orange exposure, this was due to the lack of statistical power given the low number of patients. However, he indicated that Agent Orange could not be excluded as a contributing factor. Dr. J.C. indicated that it is his belief that “the Veteran’s exposure to Agent Orange/Dioxin is a likely factor in his subsequent development of renal cell carcinoma.” See e.g., April 2019 Medical Treatment Record – Government Facility, and Hematology and Oncology Note. In a November 2020 addendum letter, Dr. J.C. indicated that he is board certified in oncology and has been treating the Veteran for his renal cell carcinoma since 2017. In addition, Dr. J.C. stated that he had reviewed the Veteran’s medical records and exposure history. The physician again noted that the Veteran did not have other risk factors specifically predisposing him to renal cell carcinoma. Dr. J.C. opined that after a review of the data “regarding the association of PCBs and dioxins with cancers in general, and genitourinary cancer including renal cell carcinoma,” he believes that “there is an association with Agent Orange exposure and causation of renal cell carcinoma that will be borne out with further study.” He reasoned that “a number of studies have not definitively linked Agent Orange with renal cell carcinoma, however, these studies had low numbers and do not preclude that association.” Dr. J.C. indicated that “in his personal experience practicing oncology in the VA setting, and that of my colleagues, that there appears to be a disproportionate number of patients with Agent Orange exposure who have presented with renal cell carcinoma here at the VAMC.” After weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether there is a nexus between the Veteran’s current metastatic renal cell carcinoma and his legally presumed in-service exposure to Agent Orange. The Board finds Dr. J.C.’s opinion to be entitled to significant probative weight. The opinion was rendered based on review of the Veterans medical records and exposure history. In addition, as a VA oncologist, Dr. J.C.’s specialized subject matter expertise lends additional gravitas. Finally, Dr. J.C. cited to peer-reviewed scientific and medical literature. The Board notes that the April 2017 VA examiner appeared to base his opinion solely on the fact that renal cell carcinoma was not amongst the specifically enumerated diseases associated with Agent Orange exposure without considering direct causation. As such, the Board finds this opinion less probative. Given the applicable standard of proof, the Board finds that service connection for metastatic renal cell carcinoma is therefore warranted. 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.