Citation Nr: 21065447 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 09-46 937 DATE: October 26, 2021 ORDER Entitlement to service connection for the Veteran's renal cell carcinoma, status post nephrectomy, to include as due to exposure to herbicides, is granted. FINDING OF FACT The evidence is at least in equipoise regarding whether the Veteran's claimed renal cancer disability is at least as likely as not etiologically related to is active-duty service, to include his conceded herbicide exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the Veteran's renal cell carcinoma, status post nephrectomy, to include as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1101, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1967 to December 1969. The Veteran died in December 2015. The Appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a prior August 2017 decision, the Board denied the Veteran's service-connection for renal cell carcinoma. The Appellant appealed the Board's August 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted a Joint Motion for Partial Remand vacating the Board's decision and remanding the matter for readjudication. The Board then remanded the claim in a December 2020 decision. When this case was last before the Board in December 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain a medical opinion regarding the etiology of the Veteran's claimed disability. A relevant medical opinion was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the December 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Renal Cell Carcinoma The Appellant contends that the Veteran's claimed renal cell carcinoma was the result of his active-duty service, to include as due to his conceded in-service herbicide exposure. The Board notes that renal cell carcinoma is not a condition presumptively related to Agent Orange exposure. However, the Appellant can still prove service-connection on a direct basis. The Board also notes that the Veteran had a current diagnosis of renal cell carcinoma. See July 2021 VA Addendum opinion. Therefore, the central issue that must be resolved is whether the Veteran's current disability originated in service or was otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) do not contain complaints of renal cancer disabilities. However, as noted above, the Veteran was boots on the ground in Vietnam and his exposure to Agent Orange is presumed. The Veteran submitted private treatment records regarding the etiology of his renal cell carcinoma. In three separate January 2009 statements, Drs. G.Z., R.R., and C.M. all indicated that a direct association between that Veteran's herbicide exposure and his renal cell carcinoma "could not be excluded." Further, in a July 2009 physician statement, Dr. G.Z. indicated that it is plausible that the Veteran's Agent Orange exposure was a predisposing factor to his renal cell carcinoma, however he indicated that the medical evidence did not provide a conclusive causal link. The Veteran submitted a later November 2009 private physician statement from Dr. G.Z. In this statement, Dr. G.Z. indicated that he had treated the Veteran since January 2009, and that since that time more information had come to his attention regarding the Veteran's service in Vietnam. Dr. G.Z. stated that he had reviewed further data regarding the effects of herbicide agents, noted that the Veteran had no family history of renal cell carcinoma or other carcinomas, and that the Veteran had no other history of exposure to carcinogens other than herbicide agents except for cigarette smoking. Dr. G.Z. concluded that it was more likely than not (greater than 50 percent probability) that the Veteran's renal cell carcinoma was causally related to his exposure to herbicide agents during service. The Veteran submitted medical articles in September 2011 and July 2014 to support his claim for service connection. The Veteran additionally submitted a further September 2014 statement from Dr. G.Z. In this statement, Dr. G.Z. indicated that that he had reviewed the literature regarding herbicide agents and renal cell carcinoma. Additionally, he cited to a study that found evidence for an increase in occurrences of all cancers combined in populations of Vietnam veterans. Dr. G.Z. concluded again that it was at least as likely as not (a 50 percent probability or greater) that the Veteran's condition was caused by his exposure to herbicide agents. The Veteran then submitted a May 2015 private medical opinion from Dr. C.M. wherein the physician opined that the Veteran's exposure to Agent Orange more likely than not (greater than 50 percent probability) contributed to his condition of renal cancer. The Veteran was afforded November 2014 and September 2020 VA examinations/medical opinions regarding his claimed renal cancer disability; however, these opinions were considered inadequate for adjudication purposes. As such, the Board remanded the Appellant's claim in December 2020 for a medical opinion which addressed the etiology of the Veteran's renal cell carcinoma, provided secondary/aggravation opinions regarding whether the Veteran's renal cell carcinoma was etiologically related to his service-connected diabetes, and which addressed the private medical opinions and articles the Veteran submitted in September 2011 and July 2014. In response to a December 2020 Board remand, the Veteran's claim was provided with a February 2021 VA Medical opinion regarding the etiology of his claimed disability. The examiner indicated that the study cited to by Dr. G.Z. was a "study" and not a "conclusion of fact". Additionally, the examiner indicated that the American Cancer Society was silent for Renal Cell Carcinoma as a "sufficient evidence of association" for Agent Orange exposure. The examiner continued that they were unable to locate the articles the Veteran submitted in July 2014, and that because they were providing a negative medical opinion for renal cancer, an aggravation opinion regarding the Veteran's service-connected diabetes was "moot." The Board finds this opinion, on its own, inadequate for rating purposes, as the examiner did not address the information required by the December 2020 remand, and did not provide an aggravation opinion. However, the RO obtained an July 2021 Addendum to the February 2021 opinion. In this opinion the examiner addressed the requested evidence and reported that the studies were "studies not a conclusion of fact nor am I aware of any evidence based medical literature. . . that would provide evidence that the Veteran's diabetes would have predisposed the Veteran as being a risk factor in the development of kidney cancer." The examiner further noted that the Veteran had a history of smoking, and it is not uncommon for an individual with a tobacco smoking history to be at an increased risk for renal cancer. However, the Board notes that in neither this addendum nor the February 2021 opinion did the examiner provide an etiology opinion regarding whether it was at least as likely as not (a 50 percent probability or greater) that the Veteran's renal cell carcinoma was etiologically related to his active-duty service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). (Continued on the next page) The Board has considered the evidence of record. Given the private opinions from Drs. G.Z., R.R. and C.M.; the February 2021 and July 2021 VA opinions; the Veteran's lay statements; and the medical evidence of record, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran's renal cell carcinoma was at least as likely as not etiologically related to his active-duty service, to include his exposure to herbicides. The evidence is thus at least evenly balanced as to whether the Veteran's current disability was related to his active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran's renal cell carcinoma disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.