Citation Nr: 21064309 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-06 195 DATE: October 19, 2021 REMANDED The issue of entitlement to service connection for kidney cancer or residuals of kidney cancer status post-surgical removal of the right kidney, to include as secondary to service-connected prostate cancer and history of pyelonephritis, on the basis of substitution, is remanded. REFERRED The issue of entitlement to service connection for bladder cancer, to include as secondary to service-connected prostate cancer, on the basis of substitution, was raised by the record and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1952 to June 1962, and from August 1962 to May 1976. He died on February [REDACTED], 2019. His wife has been substituted as the claimant in this appeal. Prior to his death, the Veteran was service connected for prostate cancer and history of pyelonephritis. In an April 2019 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted entitlement to service connection for cause of death on the basis that the Veteran's death certificate showed that his service-connected prostate cancer was one of his primary causes of death. The Appellant seeks entitlement to service connection for residuals of kidney cancer, status post-surgical removal of the right kidney, to include as secondary to service-connected prostate cancer and history of pyelonephritis, on the basis of substitution. She testified at a Board of Veterans' Appeals (Board) hearing before the undersigned in March 2021. A transcript of that hearing has been associated with the electronic claims file. Regrettably, the Board finds it necessary to remand this matter for additional evidentiary development. In August 2018, a VA examiner opined that the Veteran's kidney cancer, post-surgical removal of the right kidney, was "less likely than not" proximately due to or the result of his service-connected prostate cancer. Citing the pathology report from the Veteran's April 26, 2018 laparoscopic nephroureterectomy (surgery to remove the right kidney and ureter), the examiner noted that the Veteran had a urothelial (transitional) cell carcinoma involving the renal pelvis and midportion of the ureter. The examiner then opined that the Veteran's right kidney cancer was a completely different cell type than his prostate cancer and was not related in any way to the prostate cancer. In support of this opinion, the examiner indicated that the Veteran had his prostate cancer treated with I-125 seed implants (dose of 144Gy) in 1999 and that a post-implant consultation report (dated April 9, 1999) showed that 0 percent of the radiation dose reached as far as the bladder. The examiner further indicated that the Veteran's kidney cancer affected the renal pelvis (center of the kidney) and invaded into the kidney and then spread into the mid-right ureter. The examiner explained that this is even farther away from the prostate radiation seeds than the bladder which got 0 percent of the radiation. The examiner concluded, "Therefore, the area of recent kidney (urothelial cell) cancer was not affected in any way by the radiation seeds for the prostate cancer." Additionally, the examiner commented that smoking was a significant risk factor for the development of kidney cancer and that it was significant that the Veteran had smoked for 62 years at that time (per VA treatment notes from 2013). The examiner again reiterated that it was "far less likely than not" that this Veteran's kidney cancer was secondary to his prostate cancer in any way. In an October 2018 addendum medical opinion, the same VA examiner opined that the Veteran's kidney cancer post-surgical removal of the right kidney was "less likely than not" proximately due to or the result of the Veteran's service-connected history of pyelonephritis. The examiner explained that the Veteran's pyelonephritis that was documented in service in 1955-1956 affected his left kidney and that his current kidney cancer impacted his right kidney and ureter. Accordingly, the examiner concluded that there was no correlation between the two conditions. The Board finds it necessary to remand this appeal for several reasons: First, the Board notes that service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury, or for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310(a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The August/October 2018 VA examiner essentially found that the Veteran's kidney cancer was "less likely than not" proximately due to or the result of his service-connected prostate cancer and pyelonephritis. However, the examiner's opinions did not address the aggravation prong of secondary service connection. As neither opinion addressed aggravation of a nonservice connection disability by a service-connected disability, these opinions cannot be considered adequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Second, the Board is confused by the August/October 2018 VA examiner's rationale in support of his opinion. In particular, the examiner found that there was no causal relationship between the Veteran's kidney cancer and his service-connected prostate cancer because the cell types are different and because of the distance between the kidney cancer and the radiation seeds used to treat his prostate cancer. However, the examiner did not explain the significance regarding the different cancer cell types (squamous vs urothelial/transitional). Similarly, the examiner did not explain why it is significant that the Veteran's kidney cancer was farther away from the radiation seeds used to treat his service-connected prostate cancer. In other words, it is unclear what role proximity plays in establishing a causal relationship (or lack thereof) between prostate cancer or the treatment for prostate cancer and the development of kidney cancer. Third, the August/October 2018 VA examiner's opinion focused on the radiation seed implants used to treat the prostate cancer but not on the impact of the prostate cancer itself. In an October 2018 email correspondence that was received after the aforementioned VA medical opinions, the Veteran's son submitted an abstract from a medical journal article indicating that there was a significant risk of bladder cancer after prostate cancer. It is important to note that the Veteran was diagnosed as having cancer affecting both his right kidney and right ureter (i.e., his bladder). Furthermore, both the Appellant and her son have advanced various theories as to how the Veteran's prostate cancer caused or contributed to the development of bladder and kidney cancer. The Board acknowledges the examiner's opinion that the Veteran's kidney cancer affected the renal pelvis (center of the kidney) and invaded into the kidney and then spread into the mid-right ureter. However, in an October 2018 VA Form 21-4138 Statement in Support of Claim, the Appellant's son asserted, "We would like to amend my dad's claim to state the type of prostate cancer he was diagnosed with, that it progressed to the transitional cell carcinoma, also known as urothelial carcinoma, also known as bladder cancer, which led to the problems with his kidneys, ultimately the removal of his kidney, and finally to metastatic cancer spreading throughout his body." Likewise, at her March 2021 Board hearing, the Appellant asserted that the prostate cancer caused the bladder cancer which, in turn, caused the kidney cancer. See Board hearing transcript, pp. 5, 6-7. The Board further observes that the Veteran battled prostate cancer for an interval of 21 years but that he had bladder cancer for 112 years. See February 2019 Death Certificate. This would seem to suggest that his prostate cancer, which predated his bladder and kidney cancers, could have metastasized over time if it was not in remission. Neither the Appellant nor her son are medical experts. Nevertheless, both have raised several theories of causation that should be addressed by a medical expert. In any event, it would be helpful to know whether the Veteran's kidney cancer was a separate and distinct cancer or a progression of his bladder and/or prostate cancer. More importantly, clarity on this matter would help the Board better identify whether an etiological and/or pathological relationship exists between the Veteran's prostate cancer and his kidney cancer. As a final matter, the Board notes that the Veteran's exposure to herbicides during his service in Vietnam was previously conceded by the RO. While presumptive service connection for renal cell carcinoma as due to herbicide exposure is not available under 38 C.F.R. §§ 3.307. 3.309, the Appellant could still establish service connection for kidney cancer due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Under these circumstances, the Board is requesting a supplemental medical opinion that addresses the Board's concerns set forth above and properly evaluates both direct and secondary theories of entitlement to service connection. This matter is REMANDED for the following actions: 1. Obtain a supplemental medical opinion to ascertain the nature and etiology of the Veteran's kidney cancer and/or residuals of a right kidney surgical removal. After reviewing the claims file, to include the objective medical evidence, the lay statements of record, and the Appellant's March 2021 Board hearing testimony, render a medical opinion addressing the following: a. Is it "at least as likely as not" (50 percent or greater probability) that the Veteran's kidney cancer was caused by or related to the Veteran's military service, to include his conceded exposure to herbicides while on active duty? b. Is it "at least as likely as not" (50 percent or greater probability) that the Veteran's kidney cancer was proximately caused by or the result of his service-connected prostate cancer or his service-connected history of pyelonephritis? In providing this opinion, the examiner must provide adequate rationale for all medical conclusions reached. In providing this opinion, the examiner must provide adequate rationale for all medical conclusions reached. If the examiner relies on specific medical studies or treatises in forming his or her opinion, citations to those resources should be provided. Additionally, the examiner should explain whether prostate cancer cells are different from kidney cancer cells; and if so, how they are different; whether proximity within the human body impacts the causal relationship between prostate cancer (or the treatment for prostate cancer) and the development of kidney cancer; and whether the Veteran's kidney cancer was a separate and distinct cancer or a progression of his bladder and/or prostate cancer. To the extent possible, the examiner should address the Appellant's theories on the causative relationship between the Veteran's prostate cancer and his kidney cancer. If the examiner finds that the Veteran's kidney cancer was not a progression of his prostate or bladder cancer, the examiner should discuss the pathology of the prostate cancer and explain why it did not metastasize to his right ureter (i.e., bladder) and/or right kidney. c. Is it "at least as likely as not" (50 percent or greater probability) that the Veteran's kidney cancer was aggravated beyond its natural progression by his service-connected prostate cancer or his service-connected history of pyelonephritis? If aggravation is found, the examiner is asked to state the baseline level of severity of the kidney cancer before the onset of aggravation, to discuss the earliest medical evidence establishing the level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the Veteran's kidney cancer and what level of increase was due to aggravation from his service-connected prostate cancer and/or history of pyelonephritis in service. In providing this opinion, the examiner must provide adequate rationale for all medical conclusions reached. If the examiner relies on specific medical studies or treatises in forming his or her opinion, citations to those resources should be provided. 2. Upon completion of the above actions, readjudicate the claim. The Board notes that the issue of entitlement to service connection for bladder cancer, to include as secondary to service-connected prostate cancer, on the basis of substitution, is being referred to the RO for appropriate action. If service connection is granted for bladder cancer on a presumptive, direct, or secondary basis, the RO should consider whether service connection is warranted for kidney cancer as secondary to bladder cancer. If the decision on the kidney cancer claim is averse to the Appellant, issue a supplemental statement of the case (SSOC) and allow the Appellant and her representative the opportunity to respond. Thereafter, this issue should be returned to the Board for further appellate review, if in order. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.