Citation Nr: 21076482 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-23 234 DATE: December 23, 2021 ORDER Entitlement to service connection for renal cell carcinoma, for substitution benefits purposes, is granted. Entitlement to service connection for metastatic renal cancer nodules of the lung, claimed as lung cancer, for substitution benefits purposes, is granted. Entitlement to service connection for the cause of the Veteran's death is granted. The appeal for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Appellant's favor, the Veteran's renal cell carcinoma was causally or etiologically due to service. 2. The Veteran's primary renal cell carcinoma metastasized to the lungs. 3. The evidence indicates that the Veteran's now service-connected renal cell carcinoma caused his death. 4. The Veteran's cause of death is service connected; no benefit remains to be awarded under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. The criteria for service connection for renal cell carcinoma are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for metastatic renal cancer nodules of the lung, claimed as lung cancer, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312. 4. The claim for DIC under 38 U.S.C. § 1318 is moot. 38 U.S.C. §§ 1318, 7104; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1975 to December 1997. The Veteran died in February 2018. In November 2019, the Appellant, the Veteran's surviving spouse, was properly substituted as claimant. See November 2019 letter. This matter comes before the Board of Veterans' Appeals (BVA or Board) from March 2017 and June 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant requested a hearing before the Board. The requested hearing was conducted in August 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Of note, following the February 2019 statement of the case, the Appellant did not submit a substantive appeal (VA Form 9) for the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to DIC under 38 U.S.C. § 1318. The Board accepts the Appellant's August 2021 testimony in lieu of a VA Form 9 for the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to DIC under 38 U.S.C. § 1318 as her intent to appeal is not in doubt. See 38 C.F.R. § 19.22; Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, the Board accepts jurisdiction of these issues. Service Connection 1. Entitlement to service connection for renal cell carcinoma, for substitution benefits purposes. 2. Entitlement to service connection for lung cancer, for substitution benefits purposes. Prior to his death, the Veteran claimed entitlement to service connection for renal cell carcinoma and lung cancer. As noted, the Veteran died in February 2018 and his surviving spouse, the Appellant, was substituted to continue these claims. The Veteran asserted his renal cell carcinoma and lung cancer were due to long-term exposures to various chemicals while in service for a period of more than twenty years. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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 Appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). First, the Board notes the Veteran was diagnosed with neoplasm of the kidney and metastatic renal cancer nodules of the lung. See February 2017 VA examinations. As such, Shedden element (1), current diagnosis, is met. Next, the Board notes the RO conceded the Veteran's exposure to "petroleum products" because his military occupation specialty was a boon operator. See March 2018 statement of the case. The Veteran also specifically asserted exposure to industrial solvents and degreasers that were used to degrease and clean the machinery he worked on, including P-D 680, TCE, and benzene, among others. See February 2018 statement. The Veteran's DD-214 confirms he received military education on "Airlift of Hazardous Materials" in February 1987. It also indicates he served as an in-flight refueling craftsman for 18 years and as an aircraft armament systems journeyman for 4 years. A personnel record indicates that during an evaluation in August 1979, the Veteran's duties were described as "performs phase and special inspections of internal gunnery and weapons release systems installed in tactical aircraft. Responsible for the timely and accurate in-shop repair of line replaceable units and system components." The Board finds the Veteran's statements regarding his duties in service and exposure to various chemicals are credible and consistent with the circumstances of his service, including the duties associated with his military occupational specialty, and the Board finds no reason to doubt his credibility. The Veteran's statements are also supported by his DD-214 and personnel records. As such, the Board finds that Shedden element (2), an in-service incident or exposure, is met. Regarding element (3), a nexus, the Board notes there are several medical opinions of record. First, the February 2017 VA examiner opined that the Veteran's kidney cancer was less likely than not due to service. The examiner explained that the Veteran had other risk factors, such as smoking and hypertension, which are greater risk factors for developing renal cell carcinoma, as smoking is the single best recognized risk factor for kidney cancer. The examiner stated that exposure to petroleum products during service would not rise to 50 percent or greater probability as the cause of his renal cell cancer. The examiner then cited to and listed multiple studies regarding exposures to various chemicals and solvents and their relationship to kidney cancer. The Board notes that many of the studies indicate they were based on short-term exposure to chemicals; the Veteran and the Appellant have argued that it is the long-term effect of exposure to the chemicals for more than 20 years in service that caused his cancer. The February 2017 VA examiner failed to discuss that the Veteran was exposed to chemicals for a period of many years. An undated private medical opinion was submitted by the Appellant in February 2018. Dr. Z. noted that the Veteran was an in-flight refueling technician during Desert Shield/Storm and was exposed to unknown airborne substances during his service time. The physician then noted that the Veteran's renal tumor had potentially been present for several years due to the size of the tumor and average growth of a renal tumor is approximately 0.5 centimeters per year. The Board notes that although this opinion alludes to a possible relationship between the Veteran's exposure to chemicals during service and his kidney tumor, the physician failed to provide a nexus statement. A February 2018 private medical opinion was also submitted by the Appellant. Dr. M. stated that the Veteran was diagnosed with stage 4 metastatic renal cancer. The physician noted the Veteran's long-term exposure to a variety of known carcinogenic chemicals during his military career, including TCE, benzene, jet fuel, and P-D 680. The physician opined that it was highly likely that the Veteran's ongoing exposure to these toxic chemicals contributed to the development of his renal cancer. Dr. M. noted that other lifetime environmental and occupational exposures, diet, genetics, and lifestyle choices contribute to the added risk; however, no other potential exposures have the data strength to support the overtly carcinogenic properties such as these agents. The physician stated that the data for these chemical agents and associated risk for renal cancer is well documented. The Board resolves doubt in the Veteran's favor and finds that the February 2018 private medical opinion from Dr. M. is at least as persuasive as the negative February 2017 VA medical opinion. The private opinion provides a rationale and includes a discussion regarding the relationship between the Veteran's kidney cancer and his long-term exposure to chemicals during service. Of note, the February 2017 negative VA opinion indicates that evidence does not support an association between exposure to chemicals during service and developing kidney cancer, citing to several studies to support the opinion; however, the VA physician failed to discuss the possible long-term effects of the chemicals, given that the Veteran was exposed for at least 20 years. Similarly, the Board acknowledges that the February 2018 private opinion fails to specifically discuss the possible effect of the Veteran's smoking as a risk factor for his kidney cancer. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. As such, service connection for renal cell carcinoma and metastatic renal cancer nodules of the lung is granted. 3. Entitlement to service connection for the cause of the Veteran's death. The Appellant seeks entitlement to service connection for the cause of the Veteran's death. In order to establish service connection for the cause of a Veteran's death, the medical evidence must show that the disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A February 2018 Certificate of Death reflects that the Veteran's immediate cause of death was malignant neoplasm of the kidney. As service connection for renal cell carcinoma is now in effect and has been shown to be a cause of his death, the Board finds that service connection should be granted for the cause of the Veteran's death. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to DIC under 38 U.S.C. § 1318. In light of the grant of benefits described above, the Appellant's DIC claim is rendered moot. In that regard, entitlement to VA benefits under 38 U.S.C. § 1310 is the greater benefit, see Moffitt v. Brown, 10 Vet. App. 214, 224 (1997), and it has been granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Furthermore, the United States Court of Appeals for Veterans Claims has indicated that VA is required to also consider an appellant's claim under the provisions of 38 U.S.C. § 1318 only if a claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C. § 1310. See Timberlake, 14 Vet. App. at 134-35. For the foregoing reasons, the claim for entitlement to DIC under 38 U.S.C. § 1318 is dismissed. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.