Citation Nr: 21062575 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-44 462 DATE: October 8, 2021 ORDER Service connection for kidney cancer, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The Veteran's kidney cancer was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that a current kidney cancer disability is etiologically related to his service, to include as due to exposure to herbicide agents. CONCLUSION OF LAW Service connection for kidney cancer is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1966 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2015 Department of Veterans Affairs (VA) rating decision. In May 2019, this matter was remanded for additional development. At the outset, the Board finds there has been substantial compliance with the May 2019 Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A review of the September 2020 examination opinion found it adequate for rating purposes, which will be discussed further below. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (listed in 38 C.F.R. § 3.309 (e) may be presumed to be service connected as due to exposure to herbicide agents if manifested in a Veteran who served in Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Kidney cancer is not listed in 38 C.F.R. §3.309(e), and the presumptive provisions of 38 U.S.C. § 1116 do not apply in this matter. Nonetheless, the Veteran may substantiate the claim under that theory of entitlement by affirmative competent evidence that the disease is that related to such exposure. See Combee v. Principi, 4 Vet. App. 78 (1993). Certain chronic diseases (to include malignant tumors) may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period following separation from service (one year for malignant tumors). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran alleges that he his kidney cancer is related to his exposure to herbicide agents/Agent Orange in Vietnam. The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis of kidney cancer. On October 1969 service separation examination and November 1971 Army National Guard examination, no pertinent abnormalities were noted. Service records show he served in Vietnam. In September 2010, a VA examiner opined that renal cancer is not a complication of diabetes. In a November 2014 private medical opinion, Dr. D.S.M. opined that "it is certainly in the realm of possibility" that the Veteran's herbicide agent exposure may have pre-disposed him to renal cell cancer. On May 2015 VA examination, neoplasm of the kidney was diagnosed. The examiner reviewed the November 2014 private medical opinion and opined that the physician did not state a direct link between herbicide agent exposure and kidney cancer, only a questionable link. In a June 2015 addendum report, another VA examiner opined that she could not relate residuals of right kidney cancer to herbicide agent exposure without resort to mere speculation, noting that renal cancer is not one of the conditions presumptively linked to herbicide agent exposure and medical literature, to date, is inadequate or insufficient to provide a definitive answer whether there is an association between renal cancer and exposure to herbicide agents. On December 2019 VA examination, neoplasm of the kidney, status post kidney cancer was diagnosed. The examiner noted the condition began in 2004 when the Veteran developed left side flank pain and a CT scan coincidently found a renal mass on his right kidney. The examiner opined that the Veteran's kidney cancer is less likely due to exposure to herbicide agents, noting the medical evidence the Veteran provided in support of his claim shows no actual connection between kidney cancer and exposure to herbicide agents and is just speculation. The examiner noted kidney cancer is not part of the Agent Orange VA registry and there is no concrete evidence that the military service caused his kidney cancer. In an April 2020 buddy statement in support of the claim, a fellow Veteran reported he was exposed to herbicide agents, filed a claim for kidney cancer based on exposure to herbicide agents, and his claim was ultimately granted. The Veteran contends his claim should be granted as well due to the similar circumstances of his buddy's claim. In a June 2020 private medical opinion, Dr. D.M. opined that it is at least likely as not that the Veteran's kidney cancer is related to his exposure to herbicide agents. The provider noted that there was no history of kidney cancer in his family and that the only identifiable risk fact for developing kidney cancer was exposure to herbicide agents. The provider cited to a study out of the Shreveport VA medical center (VAMC) which examined the records of 297 patients diagnosed with kidney cancer between 1987 and 2009, and of those patients diagnosed, 13 claimed exposure to herbicide agents. In a July 2020 private medical opinion, Dr. G.S. opined that the Veteran's kidney cancer was at least as likely as not caused by exposure to Agent Orange and dioxin-related compounds, noting that the relationship between the development of kidney and uroepithelial cancers and such exposures is described in current medical literature and exposure to Agent Orange is a clear risk factor for the development of his kidney cancer. In a September 2020 VA addendum opinion (to address the private opinions in support of the claim), the consulting provider opined that it is less likely than not that the Veteran's kidney cancer is related to exposure to Agent Orange/herbicide agents, nothing the Veteran has other risk factors for developing kidney cancer. The provider disagreed with conclusions by private providers that Agent Orange was the Veteran's only identifiable risk factor for the development of renal cancer. Citing to medical literature, the provider noted that acknowledged risk factors for kidney cancer include smoking, hypertension, excessive body weight, and renal stones. The provider opined that identifiable risk factors from that list found in the Veteran include tobacco use and kidney stones. The provider stated that medical literature, while supporting an association between some toxic compounds (cadmium, asbestos, and petroleum by products), is inconclusive and insufficient to support an association between kidney cancer and Agent Orange exposure. The provider acknowledged that a few studies were exploring a possible association between Agent Orange and renal cancer. However, only 3 of 8 studies had more than 30 exposure cases and the studies were not able to reach statistical significance. Addressing the Shreveport VAMC study cited by Dr. D.M., the provider, observed that the study was published as a preliminary finding, and there was no statistically significant relationship between Agent Orange and kidney cancer, noting that the study found only 4 percent of the patients identified in the study claimed exposure to Agent Orange. The provider explained the study stated that further data were being collected to further investigate if there is a link between kidney cancer and Agent Orange exposure. In an October 2020 statement, the Veteran reported he had no history of kidney stones prior to his nephrectomy in 2004. He alleged that his body mass index was 28 in 2012 but that had nothing to due to his nephrectomy. He clarified that he is alleging that his cancer was caused by Agent Orange and not chronic kidney disease which was diagnosed in 2014. He alleged the only medical condition from 1946 to 2003 was high blood pressure, which he indicated was diagnosed in the 1990s and has been well controlled. There had been no heart, lung, or kidney problems and there is no family history of kidney cancer. In an October 2020 private addendum opinion, Dr. G.S. stated he sought to clear up any misconceptions regarding the timing of the Veteran's kidney stones and the chronic kidney disease diagnosis for his solitary left kidney. The provider noted the Veteran had no history of kidney stones prior to 2004 and developed chronic kidney disease following the right nephrectomy, and noted that the Veteran had no history of kidney stones until February 2004 when he developed a kidney stone in his left kidney; a CT scan found renal cancer on his right kidney; and he underwent nephrectomy of the right kidney 2 months later. Chronic kidney disease was diagnosed based on that the Veteran had a solitary left kidney, type 2 diabetes mellitus, and three episodes of kidney stones between 2005 and 2013. VA treatment records note the Veteran's hypertension was diagnosed in 2009 and that he smoked a pack of cigarettes a day from his 20s until 2017. It is not in dispute that the Veteran has a diagnosis of a status post kidney cancer (diagnosed in 2004, decades following separation from service) or that he was exposed to Agent Orange/herbicide agents in Vietnam. The evidence does not show that kidney cancer was manifested in service or within the first postservice year. The Veteran's STRs, including his October 1969 separation examination and November 1971 examination reports, are silent for complaints, treatment, findings, or diagnoses pertaining to kidney cancer. The first clinical diagnosis of kidney cancer is in 2004, more than 3 decades following his separation from service. Consequently, service connection for kidney cancer on the basis that it became manifest in service and persisted, on a chronic disease presumptive basis (under 38 U.S.C. § 1112), or based on continuity is not warranted. The Board observes that kidney cancer (for which service connection is sought) is not a disease listed in 38 C.F.R. § 3.309(e), and therefore the presumptive provisions in 38 U.S.C. § 1116 do not apply. The only kidney disability currently recognized as associated with exposure to Agent Orange is nephritis. See 38 C.F.R. § 3.309(e). Therefore, service connection for kidney cancer on a presumptive basis as due to exposure to Agent Orange is not warranted. Whether, in the absence of a showing of manifestation in service and continuity since or applicability of the 38 U.S.C. § 1116 presumptions, the Veteran's kidney cancer may otherwise be etiologically related to his remote service is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The preponderance of the competent (medical) evidence is against a finding that the Veteran's kidney cancer is etiologically related to his active service, to include as due to exposure to Agent Orange/herbicide agents therein. The Board finds the opinion by the September 2020 consulting physician (that the Veteran's kidney cancer is less likely than not related to his exposure to herbicide agents) to be the most probative evidence in the matter, and persuasive. The examiner expressed familiarity with the Veteran's entire record, to include the medical evidence he submitted in support of the claim, and included an explanation of rationale that contains clear conclusions and cites to supporting factual data and the currently prevailing state of medical knowledge in the matter. The provider explained that while studies are being conducted to determine whether there is a potential association between kidney cancer and Agent Orange, the current state of medical knowledge is insufficient to support a nexus between the two. Notably, the provider addressed the Shreveport VAMC study, cited by the June 2020 private provider, and explained it showed that less than 4 percent of Veteran kidney cancer patients alleged exposure to Agent Orange, which of itself does not suggest a relationship between the two. Moreover, responding to the statements in opinions supporting the claim indicating that the Veteran had not known risk factors for kidney cancer, the September 2020 consulting physician identified the non-service- related known risk factors for kidney cancer that were shown in the Veteran, to include a long history of a pack a day tobacco use, hypertension, and kidney stones. While explanations provided thereafter address the hypertension and kidney stones as risk factors, they do not account for the Veteran's long history of tobacco use. The Board acknowledges the November 2014, June 2020, July 2020, and October 2020 private medical statements in support of the claim. The Board finds that June, July, and October 2020 private medical statements in support of the claim (suggesting that the Veteran did not have any other medical risk factors for kidney cancer when it was diagnosed) reflect a lack a familiarity (or disregard) of the complete accurate factual data, as well as medical texts which identify the known risk factors, and misrepresent the ultimate conclusions of the studies and treatise evidence cited in support of a relationship between exposure to herbicide agents/Agent Orange and kidney cancer. Therefore, they merit considerably less probative value. While Dr. G.S. attempted to clarify the opinion and evidence regarding, the clarification was silent regarding the known non-service-connected risk factors for kidney cancer identified in the Veteran by the September 2020 provider (long-term tobacco use); accordingly, the Board finds it lacking in probative value. The September 2020 consulting VA physician is a medical professional competent to offer his opinion. He expressed familiarity with the entire accurate factual record, cited more-accurately to the conclusions of medical studies and treatises, and provided rationale, and included a detailed explanation of rationale supported by accurate citation to medical treatise, explanation of what treatise evidence actually reflects and supports, and the overall state of current medical knowledge. Accordingly, the Board finds that the September 2020 VA consulting provider's opinion merits far greater probative value, and is persuasive. The Board acknowledges the November 2014 statement in support of the claim but finds that opinion lacking in probative value. While the provider references studies suggesting a link between kidney cancer and Agent Orange, that t "opinion" lacks probative value because it is a statement of mere possibility rather than one of probability, and thus is inadequate for rating purposes. While the Board has considered the Veteran's and a buddy's statement citing a Board decision that granted service connection for kidney cancer (and alleging that the Veteran served in similar circumstance), Board decisions are based on the facts in the individual case and have no precedential value. Under 38 C.F.R. § 20.1303, although the Board strives for consistency its decisions, previously issued Board decisions are binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. Id. Considering the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's current kidney cancer residuals disability is etiologically related to his service, and in particular to his exposure to herbicide agents therein. Accordingly, the preponderance of the evidence is against this claim. The benefit of the doubt rule does not apply; the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.