Citation Nr: 21068013 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-11 477A DATE: November 8, 2021 ORDER Entitlement to service connection for bladder cancer is granted. Entitlement to service connection for kidney cancer is granted. FINDINGS OF FACT 1. The Veteran had bladder cancer and was exposed to herbicide agents during his active service. 2. The Veteran's kidney cancer is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for kidney cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969. This case is on appeal before the Board of Veterans' Appeals (Board) from a January 2016 rating decision. The Veteran died in August 2017. The appellant is the Veteran's surviving spouse, who was accepted as a substitute in this appeal by the agency of original jurisdiction (AOJ) in April 2020. While the appellant initially requested a Board hearing in April 2020, such request was withdrawn in October 2021. 1. Service Connection Bladder Cancer The Veteran filed a claim in October 2015 and listed on a VA Form 21-526EZ "bladder cancer [agent orange] Vietnam Veteran." Service personnel records noted that the Veteran served in the Republic of Vietnam from July 1968 to September 1969. As the Veteran had service in the Republic of Vietnam during the specified time period, he is presumed to have been exposed to herbicide agents during his active service. See 38 U.S.C. § 1116(f) ("a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent"); see also 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases warrant presumptive service connection for veterans who were exposed to herbicide agents during their active service. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a), 3.309(e). The National Defense Authorization Act for Fiscal Year 2021 amended 38 U.S.C. § 1116(a) and added three diseases to the list of diseases presumptively associated with exposure to herbicide agents. See P. L. 116-283 (enacted Jan. 1, 2021). One of the added diseases was "Bladder cancer." See 38 U.S.C. § 1116(a)(2)(J). Of record are extensive medical records, which variously showed that the Veteran had bladder cancer. See, e.g., April 2017 VA Urinary Tract Conditions Disability Benefits Questionnaire (DBQ) (noting a diagnosis of "[t]ransitional cell carcinoma of...bladder" and noting "the [V]eteran's urothelial (transitional cell) carcinomas of the bladder"); August 2017 Dr. C.W. Medical Record (noting a service of "Oncology" and stating that the Veteran had a "[history] of right transitional cancer involving the right bladder...he had subsequent recurrence in bladder...and then later...recurrence in [left] bladder"); August 2017 Death Certificate (noting the immediate cause of death as "transitional cancer of genitourinary tract"). In light of the evidence showing that the Veteran had bladder cancer, his presumed in-service exposure to herbicide agents and the addition of bladder cancer to the herbicide agent presumptive list in 38 U.S.C. § 1116(a), presumptive service connection for bladder cancer is warranted. In sum, the Board finds that the Veteran had bladder cancer and was exposed to herbicide agents during his active service. As such, the Board concludes that the criteria for service connection for bladder cancer have been met and, to this extent, the appellant's claim is therefore granted. 38 U.S.C. §§ 1110, 1116 ; 38 C.F.R. §§ 3.303, 3.307, 3.309 2. Service Connection Kidney Cancer The Veteran filed a claim in October 2015 and listed on a VA Form 21-526EZ "kidney cancer [agent orange and] cleaning compounds." As noted above, based on the Veteran's service in the Republic of Vietnam, he is presumed to have been exposed to herbicide agents during his active service. Unlike bladder cancer, kidney cancer is not one of the diseases for which presumptive service connection is warranted based on herbicide agent exposure. Entitlement to service connection, however, may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection, three elements must be established: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury, which is often referenced as the "nexus" element. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Initially, as referenced above, of record are extensive medical records. Such records variously showed that the Veteran had kidney cancer. See, e.g., April 2017 VA Urinary Tract Conditions DBQ (noting a diagnosis of "[t]ransitional cell carcinoma of both kidneys" and noting "the [V]eteran's urothelial (transitional cell) carcinomas of the...kidneys"); August 2017 Dr. C.W. Medical Record (noting a service of "Oncology" and stating that the Veteran had a "[history] of right transitional cancer involving the right...kidney...and then later...recurrence in [left]...kidney"); August 2017 Death Certificate (noting the immediate cause of death as "transitional cancer of genitourinary tract"). As such, the first element of direct service connection has been met. Next, as noted, the Veteran is presumed to have been exposed to herbicide agents during his active service. As such, the second element of direct service connection has been met. Turning to the third and final element of direct service connection, the relevant issue is whether there is a nexus between the Veteran's in-service herbicide agent exposure and his kidney cancer. As to this issue, VA did not obtain a VA opinion. A VA opinion was obtained in April 2017 from Dr. P.R., but this opinion addressed whether the Veteran's kidney cancer was related to substances different then herbicide agents. See April 2017 VA Opinion ("It is less likely than not that the [V]eteran's urothelial (transitional cell) carcinomas of the bladder, ureters and kidneys are the result of his exposure to trichloroethy[l]ene and diesel fuel as a mechanic in the service"); 38 U.S.C. § 1116(f) (noting a presumption of exposure to "an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid"); 38 C.F.R. § 3.307(a)(6)(i) (defining the term "herbicide agent" as the chemicals "2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram"). As such, this opinion did not address the relevant nexus issue in this case of whether the Veteran's kidney cancer was related to his in-service herbicide agent exposure and it is accordingly afforded no probative value as to this issue. On the other hand, of record is a September 2015 private medical record from Dr. T.S., which noted an assessment of "[b]ilateral transitional cell cancer of the renal pelvis" and "[r]ecurrent bladder cancer." An addendum to this note stated: Of note, regarding the etiology of his cancer. Apparently, he was exposed to Agent Orange in Vietnam and I cannot say for sure that that is the source of his cancer. It is at least as likely to be a risk factor as it is not to be a risk factor. So I cannot say for sure one way or the other whether that played a part. Also of record is a copy of a May 2011 U.S. News article, which stated that "[t]here appears to be a link between Agent Orange and kidney cancer in U.S. veterans exposed to the herbicide in Vietnam, a new study suggests." In review of the evidence addressing the issue of whether the Veteran's kidney cancer was related to his in-service herbicide agent exposure, there is a positive nexus opinion from Dr. T.S. In addition, as noted, the Veteran submitted a general news article referencing a study apparently linking Agent Orange exposure to kidney cancer. The Board finds that the positive opinion from Dr. T.S. and the news article to have been sufficient evidence to meet the relevant "low threshold" for VA to obtain an opinion as to the issue of whether the Veteran's kidney cancer was related to his in-service herbicide agent exposure. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, however, after resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence of record is sufficient for a determination and that the development of additional evidence is not warranted. See 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); see also Mariano v. Principi, 17 Vet. App. 305, 312 (2003) ("it would not be permissible for VA to undertake...additional development if a purpose was to obtain evidence against an appellant's case"). Overall, as to the issue of whether a nexus exists between the Veteran's kidney cancer and his in-service herbicide agent exposure, the Board finds the positive opinion from Dr. T.S. to be the most probative evidence of record. To be sure, this opinion included limited rationale and contained equivocal language. It did, however, indicate that the Veteran's in-service herbicide agent exposure "is at least as likely to be a risk factor as it is not to be a risk factor" for his cancer (identified in the related medical record as being renal and bladder cancer). The Board highlights that this is the only competent opinion of record that addressed the specific issue of whether the Veteran's kidney cancer was related to his in-service herbicide agent exposure. Resolving reasonable doubt in the Veteran's favor, the Board finds this opinion sufficient to meet the third direct service connection element. See 38 U.S.C. § 5107(b) ("When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant"); 38 C.F.R. § 3.102 ("When...a reasonable doubt arises regarding service origin...such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim"). As such, all three direct service connection elements have been met and service connection is accordingly warranted. In sum, the Board finds that the Veteran's kidney cancer is related to his active service. As such, the Board concludes that the criteria for service connection for kidney cancer have been met and, to this extent, the appellant's claim is therefore granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.