Citation Nr: 21004146 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-17 740 DATE: January 26, 2021 ORDER Service connection for renal disorder, to include renal cysts and chronic kidney disease is denied. FINDING OF FACT The Veteran’s renal disorder, to include renal cysts and chronic kidney disease, is not secondary to service-connected squamous cell carcinoma right base of the tongue and its treatment, and is not otherwise related to an in-service injury or disease to include exposure to diesel fuel and asbestos. CONCLUSION OF LAW The criteria for service connection for renal disorder, to include renal cysts and chronic kidney disease, due to service or service-connected disease are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1959 to September 1961. This issue was previously before the Board. In November 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The AOJ was instructed to obtain a medical opinion regarding the etiology of his claimed renal disorder, to include renal cysts and chronic kidney disease. Specifically, the examiner was to answer whether the Veteran’s renal disorder was caused by exposure to diesel fuels, exposure to asbestos, service-connected squamous cell carcinoma right base of the tongue and its treatment, or if it was aggravated by service-connected squamous cell carcinoma right base of the tongue and its treatment. The AOJ obtained an etiological opinion in December 2020. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in December 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. Service connection for renal disorder, to include renal cysts and chronic kidney disease The Veteran asserts that he has a renal disorder that is related to service, to include exposure to diesel fuels and/or conceded exposure to asbestos therein. In the alternative, the Veteran asserts that his renal disorder was caused or aggravated by status post radiation and chemotherapy treatment for his service-connected squamous cell carcinoma right base of the tongue. Factual Background In November 2018, a VA examiner opined that the Veteran’s renal disability was likely from adult history of poorly treated hypertension and that diabetes mellitus type II was a known risk factor that likely contributed to chronic kidney disease. In October 2019, a VA physician noted that the Veteran’s history of squamous cell carcinoma of the tongue, diagnosed in 2010, status post radiation treatment, “resulted in brachial plexopathy, chronic kidney disease, CAD [status post] PTCA done on [July 30, 2018, hypertension, obstructive sleep apnea], sinus bradycardia status post pacemaker placement in April 2019.” In pertinent part, he was diagnosed as having “post radiation brachial plexopathy” and “sick sinus syndrome status post pacemaker placement.” In November 2019, VA Medical Center treatment records state that the Veteran “is felt to have radiation-induced brachial plexopathy” and that he was “status post pacemaker placement.” In December 2019, a VA examiner remarked that the Veteran began having kidney failure after his chemotherapy for his skin cancer. The Veteran was not diagnosed as having kidney cancer. VA Medical Center treatment records from September 2020 show that the Veteran’s stage 3 chronic kidney disease was presumed multifactorial in the setting of long-standing hypertension, Agent Orange exposure, and IV contrast. Diabetic involvement was less likely given the lack of proteinuria. In December 2020, a VA examiner submitted an addendum opinion as instructed by the November 2020 Board decision. The examiner opined that it was less likely as not that the Veteran’s renal disorder, to include renal cysts and chronic kidney disease (“renal disability”) had its onset during military service or is otherwise etiologically related to military service, to include exposure to diesel fuels or exposure to asbestos. As rationale, the examiner stated that asbestos is not known to cause renal disability unless it was associated with kidney cancer. The examiner further stated that exposure to diesel fuels would cause “a more immediate effect and not years later.” The examiner concluded that the Veteran’s renal disorder was presumed multifactorial in the setting of long-standing hypertension, IV contrast, but less likely diabetic. The examiner also opined that the Veteran’s renal disability was less likely as not caused by service-connected squamous cell carcinoma right base of the tongue and its treatment. As rationale, the examiner again stated that the Veteran’s renal disorder was presumed multifactorial in the setting of long-standing hypertension, IV contrast, but less likely diabetic. Lastly, the examiner opined that the Veteran’s renal disability was less likely as not aggravated by service-connected squamous cell carcinoma right base of the tongue and its treatment. As rationale, the examiner stated that renal disability is not known to be aggravated by radiation treatment. Analysis After considering the evidence of record, the most probative evidence establishes that the Veteran’s current renal disability is not causally related to his active service or any incident therein, to include exposure to diesel fuel or asbestos. Also, the most probative evidence establishes that the renal disability was neither caused nor aggravated by the Veteran’s service-connected squamous cell carcinoma right base of the tongue and its treatment. As an initial matter, there is no evidence of record that the Veteran was exposed to Agent Orange during service nor that he served in the Republic of Vietnam. The Veteran also does not contend that he was exposed to Agent Orange or that he served in the Republic of Vietnam. Thus, the September 2020 VA Medical Center treatment record suggesting exposure to Agent Orange as a potential cause of the Veteran’s renal disability has no probative weight. The December 2020 VA examiner also did not include Agent Orange as a possible cause of the Veteran’s renal disability. As discussed above, there is no medical opinion of record that attributes the Veteran’s renal disability to his service or service-connected squamous cell carcinoma right base of the tongue and its treatment. The only medical record that could be read as attributing the Veteran’s renal disability to his service-connected disability is the VA Medical Center treatment center record from October 2019 that lists chronic kidney disease after brachial plexopathy. A review of the VA Medical Center treatment records, however, shows that only brachial plexopathy was attributed to the Veteran’s radiation treatment for his service-connected disability and that the other disabilities listed after were the Veteran’s other disabilities. Similarly, the December 2019 VA examiner only stated that the Veteran “began having kidney failure after his chemotherapy for his skin cancer” to illustrate the gap in time between his exposure to diesel fuels or asbestos and the diagnosis of kidney failure. Even if the December 2019 VA examiner’s statement is interpreted as a statement explaining causation rather than correlation, greater probative weight is given to the December 2020 VA examiner’s opinion as it is conclusive with supporting rationale. Also, the medical evidence of record support the December 2020 VA examiner’s opinion as noted in November 2018 and September 2020. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for renal disorder, to include renal cysts and chronic kidney disease, is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.