Citation Nr: 21008343 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-21 966 DATE: February 16, 2021 ORDER Entitlement to service connection for right kidney renal cell carcinoma is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his right kidney renal cell carcinoma is related to his conceded, in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for right kidney renal cell carcinoma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to May 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). By way of procedural background, in a February 2020 decision, the Board denied the Veteran’s claim for service connection for right kidney cancer. The Board, however, granted service connection for hypertension to include as due to exposure to herbicide agents and remanded the remaining issues of entitlement an initial rating in excess of 30 percent (to exclude convalescence period from June 10, 2010 to August 1, 2010) for service connected coronary artery disease and entitlement to a total disability rating based on individual unemployability (TDIU) to the AOJ for further development. While pending Board readjudication, in July 2020, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (AMA Notice of Disagreement) to Opt-In to the AMA system as to the remanded issues of increased rating for service-connected coronary artery disease and entitlement to a TDIU. In October 2020 the Board sent correspondence to the Veteran indicating these matters had been docketed in the AMA system. Therefore, as these matters are no longer before the Board in the legacy system, a separate decision will be issued. The Veteran appealed the denial of his claim for service connection for right kidney cancer to the United States Court of Appeals for Veterans Claims (CAVC/the Court). Upon a Joint Motion for Partial Remand (JMPR), filed by the parties in September 2020, the Court issued a September 2020 Order vacating that portion of the Board’s February 2020 decision that denied service connection for right kidney cancer. The Court did not disturb that portion of the decision that granted service connection for hypertension. The claim of entitlement to service connection for right kidney renal cell carcinoma has now been returned to the Board for further appellate action. Entitlement to Service Connection for Right Kidney Renal Cell Carcinoma The Veteran contends that he is entitled to service connection for right kidney renal cell carcinoma due to his in-service exposure to herbicide agents, to include Agent Orange. As an initial matter, the Board notes that service connection is available for certain diseases as presumptively associated with exposure to herbicide agents under 38 C.F.R. §§ 3.307 and 3.309. Renal Cell Carcinoma (Kidney Cancer) is not one of the enumerated diseases. However, even when service connection cannot be established on a presumptive basis, see 38 C.F.R. § 3.309 (e), such does not preclude establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, to establish service connection, the evidence must show (1) the existence of a present 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). The evidence establishes the first and second requirements for service connection. The Veteran has a diagnosis of right kidney renal cell carcinoma, and he is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. 38 C.F.R. §§ 3.303, 3.307; Holton, 557 F.3d at 1366-67. Thus, the question for the Board is whether it is more likely than not that there is an etiological relationship between the Veteran’s right kidney renal cell carcinoma and his exposure to herbicide agents. On this question, there are private and VA opinions that are supportive of and against the claim. Evidence that is supportive of the claim includes a May 2016 private opinion letter from Dr. V.C. who opined that the Veteran’s right kidney renal cell carcinoma is at least as likely as not caused by his exposure to Agent Orange during honorable military service in Vietnam. Dr. V.C. stated that her review of the medical literature found suggestive evidence that exposure to Agent Orange caused an increased risk of cancer. She stated that the combination of dibenzofurans contaminated with multiple dioxins including TCDD, in Agent Orange, are cancer promoters. Therefore, they “catalyze” the development of cancer in multiple sites in the body. She added that there was scientific consensus for a common mode of action of TCDD and other chlorinated dibenzodioxins, dibenzofurans, and planar polychlorinated biphenyls (PCBs) that involves events that stem from the initial binding of TCDD to the aryl or aromatic hydrocarbon (Ah) receptor. The Ah receptor acts as a signal transducer and activator for gene transcription. She indicated that given epidemiologic and toxicologic evidence, it can be opined that TCDD causes many cancers in many locations including the kidney and renal pelvis. She pointed to the introductory paragraph of the now declassified Zumwalt report wherein Zumwalt stated: “I conclude that there is adequate evidence for the Secretary to reasonably conclude that it is at least as likely as not that there is a relationship between exposure to Agent Orange and the following health problems, to include kidney cancer.” Dr. V.C. stated that Zumwalt had divided the list into two groups: one in which he believes there is incontrovertible evidence that there is a statistically significant association between the outcome and exposure to Agent Orange and those conditions for which the evidence is less conclusive. Dr. V.C. indicated that kidney cancer is in the latter group. She added, however, that the incidence of renal cell carcinoma is only about 12 per 100,000 population and that because the incidence of renal cell carcinoma is so low, there are very few epidemiological studies regarding a relationship between it and exposure to dioxins, Agent Orange, or any other of its components. She stated that most of the few studies that are available show a positive relative risk for renal cell carcinoma but because the actual number of cancers are so low, only three of the studies have results which reach the level of statistical significance. She concluded her report by stating that epidemiology is not the only way in which association, or in fact causation can be examined. She stated that in a recent article referenced by the IOM, Veterans and Agent Orange Update 2014, it was determined that activation of the ArH receptor by TCDD enhances the development of renal cancer. Dr. V.C. added that other herbicides used in Vietnam, in addition to Agent Orange, are also implicated in the development of renal cancer such as Cacodylic Acid, also known as dimethylarsinic acid (DMAv), as found in Agent Blue. She indicated that DMAv is carcinogenic and that according to IOM report, cancers have been induced in the kidneys of laboratory animals exposed to high concentrations of DMA. Evidence against the claim includes an August 2018 VA medical opinion wherein the examiner opined that condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that a review of the medical literature did not support the Veteran’s claim. The examiner cited to a study of over 1700 patients with kidney cancer and 2300 control which showed an increased risk of cancer in those exposed to asbestos, cadmium, and gasoline. He stated that an increased exposure to cadmium carcinogen may be associated with the pathogenesis of kidney cancer. He stated that the relationship between mutations in this gene and exposure to trichloroethylene, a petroleum by-product used as a metal degreaser, was evaluated in 44 patients with kidney cancer and known exposure to the toxin, 107 with kidney cancer but no known exposure, and 97 healthy controls. He noted that a specific mutational hot spot in the Hippel-Lindau gene was found in 39 percent of those with toxin exposure, but in none of those without exposure or in any of the healthy individuals. The examiner concluded that while this data suggested a link among carcinogen exposure, genetic damage in a specific site, and renal cancer, it does not prove causation. The examiner further addressed the Zumwalt report on Agent Orange and renal cancer mentioned in the American Urological Association Mediaroom. He noted that the report was not considered in the list of presumed service connection conditions associated with Agent Orange exposure declared by the VA in the Agent Orange and Veterans Updated 2014 and newsletter 2017 per advice by the National Academic Medicine that peer review scientific articles regarding Agent Orange. The Board concludes that the evidence regarding the etiology of the Veteran’s right kidney renal cell carcinoma is in equipoise. The VA examiner’s opinion is no more and no less probative than Dr. V.C.’s opinion. The VA examiner indicates that the data suggests a link between carcinogen exposure and renal cancer but concludes it does not prove causation. Such is based, in part, on the examiner’s disregard of the Zumwalt report on Agent Orange and renal cancer on the basis that it is not on the list of presumed cancers. On the other hand, Dr. V.C.’s opinion summarizes medical literature and studies showing an association between renal cell carcinoma and exposure to herbicide agents. Dr. V.C. acknowledged that limited studies have results which reach the level of statistical significance to show a positive relative risk for renal cell carcinoma. However, she explained that there are very few epidemiological studies regarding such a relationship because the incidence of renal cell carcinoma is so low. In light of the foregoing, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for right kidney renal cell carcinoma. U.S.C. § 5107 (b), 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate 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.