Citation Nr: 21009430 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-50 320 DATE: February 22, 2021 ORDER Service connection for bladder cancer is granted. Service connection for right kidney cancer, including right kidney nephrectomy, is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam. 2. The Veteran’s bladder cancer is presumed to be due to herbicide agent exposure in service. 3. Right kidney cancer or nephrectomy were not documented in service or within one year thereafter; and, the preponderance of the evidence fails to establish that the Veteran's right kidney cancer, was caused by or is otherwise related to his active service including as due to herbicide agent exposure.   CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1116(a)(2), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; 3.307, 3.309; National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021, Pub. L. 116-283. 2. The criteria for service connection for right kidney cancer, including right kidney nephrectomy are not met. 38 U.S.C. §§ 1110, 1112, 1116(a)(2), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board denied the Veteran’s claim for service connection for right kidney cancer. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). In January 2020, pursuant to a joint motion for partial remand (JMPR) filed by the VA and the Veteran, CAVC vacated the Board’s February 2019 decision and remanded it to the Board for further action. The case was then remanded by the Board in June 2020 to abide by the terms of the JMPR. Service Connection 1. Service connection for bladder cancer The Veteran seeks service connection for bladder cancer due to exposure to herbicide agents during his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As a preliminary matter, a July 2015 VA examination for the urinary tract documented the Veteran to have a diagnosis of bladder cancer. As such, the first element of a service connection claim, a current diagnosis, has been met. Furthermore, the Veteran’s DD Form 214 shows a Vietnam Service Medal and a Vietnam Campaign Medal. Additionally, a September 2013 rating decision granted service connection for lung cancer as associated with herbicide exposure. Based on the foregoing, the Board finds that herbicide agent exposure is presumed based on his service in Vietnam. As such, the second element of a service connection claim is met. As the Veteran has established the first two criteria for service connection, the sole question before the Board is whether the third element is met. Service connection may also be granted on a presumptive basis if a Veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, even though there is no record of such disease during service. Certain listed diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 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 Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. Notwithstanding the foregoing presumption provisions for herbicide agent exposure, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Of note, three disorders were added to the list of diseases presumptively associated with exposure to herbicide agents. National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub. L. 116-283. Specifically, 38 U.S.C. § 1116(a)(2) was amended to include Parkinsonism, bladder cancer, and hypothyroidism. This means, because the Veteran has a current diagnosis of bladder cancer, is presumed to have been exposed to herbicide agents in service, the nexus element of service connection is established, by law, on a presumptive basis. Thus, a medical nexus evidence is not required to establish service connection, as the Veteran’s disability meets the presumptive provisions by law. Accordingly, the Veteran’s claim for bladder cancer is granted. 2. Service connection for right kidney cancer (claimed as kidney cancer, and urethral cancer) The Veteran contends that his right kidney nephrectomy is related to his exposure to herbicide agents, to include Agent Orange, while serving in the Republic of Vietnam. VA kidney and urinary tract examinations conducted in July 2015 diagnosed right kidney nephrectomy, urethritis, and urethral cancer. As such, the first element of a service connection claim, a current diagnosis, has been met. As discussed above, the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam. However, only chronic diseases enumerated under 38 C.F.R. § 3.309(e) are considered to be the result of in-service exposure to herbicide agents, such as Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Here, kidney cancer and renal cancer are not among the diseases listed in 38 C.F.R. § 3.309(e). Thus, the presumption does not apply to the Veteran’s present service connection claim.   Service connection for right kidney nephrectomy may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right kidney nephrectomy and an in-service injury, event or disease, including herbicide agent exposure. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. A review of the Veteran’s service treatment records shows the September 1965 entrance examination, to include a negative urinalysis and accompanying Report of Medical History, were both silent for kidney abnormalities. There were also no complaints, treatment or a diagnosis related to a kidney condition. Notably, in December 1966, he received in-service treatment for rash on his penis, which was diagnosed as urethritis. The condition was treated and there were no further complaints during service, to include a normal examination upon separation from service in August 1967. Based on the foregoing, the Board finds the urethritis was not a noted as a chronic disease. See 38 C.F.R. § 3.303(b) (stating that for the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.”). As indicated above, his August 1967 separation examination and accompanying Report of Medical History were both silent for urinary tract issues as well as kidney abnormalities. The Veteran had an Agent Orange registry examination in August 2008. His renal mass and nephrectomy were documented. The impression was that the renal malignancies were not related to Agent Orange and there were no other related conditions. He had a follow up in December 2011. He had several transitional cell cancer lesions in his bladder since the last examination. It was noted that he did not have any Agent Orange related conditions including the transitional cell cancers. The Veteran was afforded a VA kidney examination in August 2013. The examiner diagnosed neoplasm of the kidney noted as occurring in 2010. He reported that he had been diagnosed with kidney cancer three years prior and underwent right kidney removal. Renal dysfunction was annotated, but there was no dialysis treatment or renal dysfunction reported. No further cancer treatment was occurring at the time of the examination with no signs of residuals. The examiner provided an opinion concluding that the lung cancer was related to his military service; however, there was no correlation between the kidney cancer and the lung cancer. The medical doctor stated that the diseases were considered separate and distinct from one another. In October 2014, the Veteran submitted kidney and urinary tract disability benefits questionnaires (DBQ’s) by his private doctor, J.M. The kidney DBQ diagnosed a neoplasm of the right kidney, which had required surgical removal. The report revealed current renal dysfunction; however, dialysis treatment was not required. Nor was there a requirement for continuous medication. Moreover, the report noted multiple recurrent bladder tumors, which did not cause any residual conditions or complications. The report concluded by asserting the Veteran experienced limitations related to his ability to work, but did not cite specific limitations. The urinary tract DBQ diagnosed bladder cancer, renal pelvis cancer and right urethral cancer. There were multiple noted recurrences that resulted in infections of the bladder and he was on continuous medication for urethral or bladder infections. There was no impact on his ability to sustain employment. In July 2015, the Veteran submitted a letter from Dr. J.M. documenting that the Veteran had been exposed to Agent Orange. After service, he developed several transitional cell bladder cancers, then developed the same transitional cell tumor in his right renal pelvis that required the removal of all of his right kidney and ureter in 2010. Dr. J.M. did not specifically link the Veteran’s right kidney or tumors to his Agent Orange exposure. Rather, Dr. J.M. cited literature that reflected an association between renal cell carcinoma, which he indicated was different from the Veteran’s tumor, and exposure to Agent Orange. Correspondence associated with the DBQs from October 2014 and the July 2015 letter from Dr. J.M., the Veteran submitted online articles that referenced links between kidney cancer and Agent Orange. The majority of these articles were from lay persons without medical training that sought either online advice on how to file VA claims or encouraged Veterans to contact their Congressman to have the VA add kidney cancer to the list of presumptive diseases associated with exposure to Agent Orange. As such, the Board places little to no weight on them as they are not competent evidence and they do not address the facts specific to this Veteran. Other articles discussed findings linking kidney cancer to herbicide agents, specifically Agent Orange, were based on preliminary research, which had not been subjected to peer review that typically accompanies publication in medical journals. The submitted online articles were not conclusive in determining whether a nexus existed between Agent Orange and kidney cancer. Due to the preliminary nature and lack of peer review, the Board also places little to no weight on this evidence. In July 2015, the Veteran was afforded VA kidney and urinary tract examinations. The kidney examination diagnosed right nephrectomy. Although there was renal dysfunction there was no requirement for dialysis or continuous medication. Moreover, there were no residual conditions or complications due to the neoplasm. Regarding, work the report recorded that the Veteran would experience some weakness due to his treatment. Notably, the VA examiner reviewed the letter from Dr. J.M. and annotated that the letter did not include formal documentation such as operative reports or biopsy reports. The accompanying July 2015 VA urinary tract examination diagnosed urethritis, bladder cancer, and urethral cancer. The report annotated that his private urologist had diagnosed urethral cancer in 2006 and bladder cancer in 2007. There was an apparent reoccurrence of a tumor in his bladder in December 2015. His private urologist also mentioned chronic use of antibiotics in his DBQ, however, the Veteran stated that he only took medication prior to a cystoscopy. The examiner recorded renal dysfunction with malignant neoplasm or metastases that was in remission. The July 2015 VA examiner opined that his diagnosis of urethral cancer was less likely than not incurred in or caused by the in-service diagnosis of urethritis. The rationale was that the Veteran’s separation examination showed a normal genitourinary system and treatment records during active service showed a negative serology report in August 1967 prior to discharge without any sort of balanitis, urethritis or ongoing penile rash. Furthermore, the weight of medical literature revealed that balanitis, urethritis, and the described penial rash responded to topical treatment and did not cause urethral cancer. Therefore, it was less likely than not that the diagnosis of urethral cancer was caused by the diagnosis of urethritis during service. In September 2015, a VA examiner opined that right kidney cancer was less likely than not incurred in service, including as due to herbicide agent exposure. The rationale was that there was no evidence of right kidney cancer during or proximate to military service. Additionally, medical literature indicates there is limited suggestive evidence of a scientifically meaningful association of right kidney cancer with exposure to the chemicals in question. Specifically, the National Academy of Sciences continues to be unable to find medical evidence of a meaningful association between Agent Orange and kidney cancer. The Veteran underwent another VA examination for the kidney disorder in October 2020. He was noted to have a kidney neoplasm and kidney removal. He reported he continued to have surveillance cystoscopy every six months because he also had bladder cancer. He also had a long history of cigarette smoking up to one pack a day for fifty years before attempts of quitting beginning in 2012 up until 2020. After examination and review of the evidence, the examiner opined it was more likely that the Veteran’s long history of cigarette smoking caused the right kidney (renal) cancer. The evidence did not show an in-service injury, event, disease, or exposure resulted in or predisposed the development of his kidney (renal) cancer or the kidney removal. The rationale included that according to Agent Orange: Update 11 (2018) there was inadequate or insufficient evidence to determine association between exposure to the chemicals of interest to which veterans were exposed in the Vietnam era and the health outcomes that were explicitly reviewed including renal cancer (kidney and renal pelvis). The examiner also explained that according to Up to Date resource, cigarette smoking is a major risk factor for development of kidney cancer. The risk factors did not include chemicals associated with Vietnam era exposure. The Board assigns highly probative and much weight to the October 2020 VA opinion. The examiner considered the complete record, the Veteran’s contentions, medical literature, and provided an explanation as to why the evidence did not support a finding that the Veteran’s right kidney nephrectomy, which was not shown in service or within one year of service discharge, was related to service, including exposure to herbicide agents. The examiner cited to competent medical literature that included the well-documented history of the relationship between the risk factor of smoking and kidney cancer, and showed how it related to the Veteran’s case. The VA medical opinion is worthy of weight, because it is based on an accurate medical history and provided an explanation that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In contrast, Dr. J.M.’s opinion is not conclusive as it pertains to the Veteran’s specific case. The July 2015 opinion indicated that there is support from literature for an association to renal cell carcinoma, but Dr. J.M. specifically stated that it was different from the type of cancer that the Veteran had been diagnosed with related to his bladder. As such, the Board affords it little probative weight. (Continued on the next page)   While the Veteran believes his right kidney cancer/nephrectomy is related to an in-service injury, event, or disease, including herbicide agent exposure, he is not competent to provide a nexus opinion in this case. This question of medical causation requires medical expertise, and hence is beyond the ambit of lay knowledge. The Veteran, as a layperson, is not shown to possess of this expertise. Hence, his opinion of herbicide agent related etiology of his right kidney nephrectomy is not competent evidence which may serve to support the claim and it lack weight. See Jandreau v Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the most probative and persuasive evidence is against a finding that the Veteran's right kidney nephrectomy is related to service, including herbicide agent exposure. Accordingly, service connection is denied. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.