Citation Nr: 21065606 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-49 771 DATE: October 26, 2021 ORDER Entitlement to service connection for kidney cancer to include removal of left kidney is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's kidney cancer is etiologically related to herbicide exposure while serving in the Vietnam War. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for kidney cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from January 1970 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran received the Republic of Vietnam (RVN) Campaign Medal, among other commendations. In March 2019, the Board found that the Veteran presented new and material evidence to reopen his claim for service connection for kidney cancer. The Board also remanded the claim for development including a new VA opinion. The Veteran was afforded a new VA opinion in December 2019. After a Supplemental Statement of the Case (SSOC), the claim is back before the Board. Entitlement to service connection for kidney cancer In this case, the Veteran seeks entitlement to service connection for kidney cancer, that he believes is due to exposure to herbicides while in Vietnam. See NOD received March 2017. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that kidney cancer is not included in the diseases listed in 38 C.F.R. § 3.309(e). Therefore, the presumption of service connection due to herbicide exposure is not warranted. However, even if kidney cancer is not included in the diseases listed in 38 C.F.R. § 3.309(e), a veteran can still establish service connection for such disability by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R.§3.309(e). First, the Veteran has a current disability of kidney cancer with left kidney removal and reoccurrence. See Medical Treatment Record Non-Government Facility received May 15, 2017. Second, the evidence supports a finding of an in-service event, injury, or disease. The Veteran had service in the Vietnam War. The certificate of his release or discharge from active service reported that he received the RVN Campaign Medal. The Veteran had nine months and 14 days of foreign service. See DD Form 214 received February 2015. The Veteran contends that he was exposed to herbicide agents like Agent Orange. The Board finds that the Veteran's statements are credible, as they are consistent with the verified circumstances of his service. 38 U.S.C. § 1154(a). The Board accepts these statements as competent evidence establishing in-service exposure, and, as such, the second element of in-service incurrence has been met. Lastly, the Board considers whether the evidence supports a link or nexus between the Veteran's exposure in service and his current kidney cancer. In particular, the Veteran's private treatment provider opined that the Veteran's cancer could be related to his contact with herbicides, like Agent Orange, while serving in Vietnam. See Medical Treatment Record Non-Government Facility received June 2018. Since the private treatment provider did not include any rationale for his opinion, the Board remanded the claim for a VA opinion. In December 2019, a VA expert provided an opinion that the Veteran's kidney cancer was less likely than not incurred in or caused by the claimed in service injury, event, or illness. However, the rationale for the opinion was not well supported and inadequate. The expert stated that the association and risk for developing renal cell carcinoma from herbicide exposure was not known and not established. Additionally, the doctor stated that although the Veteran had a private medical opinion, there was no medical information establishing a more than 50 percent probability. See C&P Exam received December 2019. The Board emphasizes that service connection does not require a more than 50 percent probability. If the evidence is evenly balanced (a 50 percent probability) then the Veteran should be awarded service connection. The Board finds that considering the two opinions, the evidence is at least evenly balanced, or in equipoise, as to whether the Veteran's exposure to herbicide agents, like Agent Orange, during the Vietnam War caused his kidney cancer. Since the VA expert suggested that the risk for developing renal cell carcinoma from herbicide exposure was not well known, the Board sees little benefit to obtaining another VA opinion. The law is clear. 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 Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b). Resolving any reasonable doubt in favor of the Veteran, the Board finds that a link between the Veteran's kidney cancer and in-service herbicide exposure has been established. Accordingly, the Veteran's claim for service connection for kidney cancer is granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.