Citation Nr: 21066490 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-40 013 DATE: November 1, 2021 ORDER Entitlement to service connection for lung cancer as due to service-connected renal cell carcinoma, clear cell type status post nephrectomy and adrenalectomy, is granted. FINDING OF FACT The Veteran's lung cancer is proximately due to his service-connected renal cell carcinoma, clear cell type status post nephrectomy and adrenalectomy. CONCLUSION OF LAW The criteria for entitlement to service connection for lung cancer as secondary to service-connected renal cell carcinoma, clear cell type status post nephrectomy and adrenalectomy, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to June 1969. For the Veteran's service, he was awarded the Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantryman's Badge, and Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. Most recently, the Veteran's claim for service connection was remanded by the Board in October 2020 for further development. That development having been completed; the Veteran's claim has returned to the Board. Prior to the Veteran's claim for service connection for lung cancer returning to the Board, an October 2021 Board decision granted service connection for renal cell carcinoma, clear cell type status post right nephrectomy and adrenalectomy. Entitlement to service connection for lung cancer as due to service-connected renal cell carcinoma, clear cell type status post nephrectomy and adrenalectomy is granted. The Veteran seeks entitlement to service connection for lung cancer. Specifically, the Veteran maintains that his lung cancer was caused by in-service herbicide agent exposure or by his now service-connected renal cell carcinoma. For the following reasons, the Board finds that service connection is warranted as the evidence demonstrates that the Veteran's lung cancer is related to his renal cell carcinoma. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). VA has also established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307(a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Because the Veteran served in the Republic of Vietnam during the Vietnam Era, as shown by his service personnel records and awards, he is presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The diseases associated with herbicide exposure for purposes of the presumption respiratory cancers, including lung cancer. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). If the veteran was exposed to an herbicide agent (to include Agent Orange) during active service, lung cancer shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Secondary service connection under § 3.310 entails "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has a current diagnosis of lung cancer. The Veteran was shown to have a right lower lobe pulmonary lesion in April 2011 and a biopsy demonstrated a minute fragment of lung parenchyma with atypical cellular infiltrate. An October 2011 right lower lung biopsy showed a small cluster of highly atypical cells, highly suspicious for metastatic renal cell carcinoma. Several CT studies showed a right lower lobe tumor. Further, the Veteran's claims folder contains a February 2020 private medical opinion from C.F., MD, Associate Professor at the James P. Wilmot Cancer Center, Division of Hematology/Oncology at the University of Rochester Medical Center linking his lung cancer to his renal cell carcinoma. The medical opinion provides that the Veteran's lung cancer is due to his renal cell carcinoma. The Veteran's lung biopsy from October 7, 2011, showed atypical cells that demonstrated morphological similarity to the cells in his kidney tumor. Pursuant to the Board's October 2020 remand, a December 2020 medical opinion was obtained. The medical opinion states that multiple areas including pathology reports indicate that the Veteran underwent nephrectomy with adrenalectomy with pathology indicating clear cell carcinoma. The Veteran's lung nodule was biopsied twice, which showed renal cell carcinoma. Therefore, the Veteran's lung cancer metastasized from his kidney and was not a primary lung cancer. An August 2020 private medical opinion from M.J.F., MD, Assistant Professor, Radiation Oncologist, Department of Radiation Oncology, at the University of Maryland School of Medicine states that the Veteran has a known diagnosis of renal cell carcinoma with biopsy confirmed spread to the lung. Additionally, a November 2018 Medical Oncology Follow-up Consultation from C.F., MD advised that the Veteran has metastatic clear cell type renal cell carcinoma. The consultation states that there is morphologic overlap between the Veteran's lung lesion and primary kidney tumor. The atypical cells in the Veteran's lung showed morphological similarity to the cells in the kidney tumor. The findings in the lung are most consistent with metastatic renal cell carcinoma. (Continued on the next page) The Board finds the above medical evidence linking the Veteran's lung cancer to his renal cell carcinoma to be especially probative as it represents the informed conclusion of a medical professionals, and specifically with concentrations in the area of oncologystudying, diagnosing, treating, and managing cancers, and are supported by thorough explanations with citation to the medical diagnostic evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") The Board notes that the Veteran's claims folder does not contain medical opinion disassociating his lung cancer from his renal cell carcinoma. In sum, the preponderance of the evidence weighs in favor of service connection for lung cancer. In the absence of any probative evidence to the contrary, entitlement to service connection for lung cancer as secondary to the Veteran's service-connected renal cell carcinoma, clear cell type status post nephrectomy and adrenalectomy is granted. Because the preponderance of the evidence is in favor of the award of service connection the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.