Citation Nr: 21011867 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-02 038 DATE: March 2, 2021 ORDER Entitlement to service connection for kidney cancer to include as due to herbicide exposure and prostate cancer is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s kidney disease is related to the Veteran’s active duty service to include herbicide exposure and not caused by or aggravated by service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for kidney cancer to include as due to herbicide exposure and prostate cancer, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service from January 1967 to October 1970 to include service in the Republic of Vietnam. This matter is on appeal from an October 2014 rating decision. The Veteran was afforded a February 2020 hearing with the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in March 2020 for additional development. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Kidney Cancer The Veteran asserts that his kidney cancer is related to his active duty service to include herbicide exposure or related to his service-connected prostate cancer. Review of the Veteran’s medical treatment record shows the Veteran underwent a September 2013 surgical procedure for a partial nephrectomy of his right kidney. An April 2014 VA examination diagnosed the Veteran with neoplasm of the kidney, status post partial nephrectomy and a May 2020 VA examination diagnosed the Veteran with renal cell carcinoma and left renal mass. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment records (STRs) do not show any complaints, treatments or diagnoses relating to kidney cancer. As noted in the February 2020 hearing, VA has conceded the Veteran was exposed to herbicides. The Board notes that kidney cancer is not recognized by VA as a presumptive disability related to exposure to herbicide agents. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of the medical treatment record shows in March 2012 metabolic panel test results showed a slight elevation of creatine levels from the Veteran’s kidney. In June 2013 the Veteran was afforded a diagnostic test for his chest related to complaints of coughing and wheezing. The test found mild bronchiectasis and emphysema but also found a complex cystic right renal lesion. A followup August 2013 diagnostic test of the Veteran’s abdomen found a complex exophytic right renal cyst. The treating provider noted that this was an “incidental finding” but also a “68 percent likelihood of malignancy” and recommended the cyst be removed from the kidney. The Veteran’s prostate specific antigen (PSA) levels were also noted to be elevated and rising but a prostate biopsy was to be delayed until after the Veteran’s surgical procedure for removing the kidney cyst. In September 2013 the Veteran underwent a partial nephrectomy surgical procedure to remove the cyst. A 6 cm sized cyst was removed, and further testing of the removed cyst found it to be renal cell carcinoma. In December 2013 the Veteran was found to be asymptomatic regarding his status post nephrectomy in September 2013. The treating provider noted increased PSA levels in the past 3 years and that prostate cancer may likely be present. In January 2014 a prostate biopsy confirmed a diagnosis for prostate cancer. The Veteran was afforded an April 2014 VA examination. The VA examiner diagnosed the Veteran with neoplasm of the kidney status post partial nephrectomy. The Veteran reported an onset of his condition in September 2013 when he underwent surgery. In October 2014 a VA opinion was obtained. The VA examiner noted that the Veteran underwent a September 2013 partial nephrectomy to treat renal cell carcinoma and followup evaluations found no recurrence of renal cell carcinoma. The examiner noted that “patients with [renal cell carcinoma] present with a range of symptoms; unfortunately, many patients are asymptomatic until the disease is advanced.” The examiner identified associated risk factors to include smoking, obesity and hypertension. The Board notes the October 2014 opinion does not discuss whether the Veteran’s kidney cancer is related to herbicide exposure or caused and/or aggravated by his prostate cancer. In a December 2014 statement, the Veteran stated that he had a cyst on his kidney “that was the size of my kidney” that was found on a routine exam, and after his September 2013 surgery, he was told that it was cancerous. In March 2015 the Veteran submitted a medical letter from the provider who performed the September 2013 surgical procedure. The provider noted that following the September 2013 procedure the Veteran was treated for prostate cancer in January 2014. The provider acknowledged that kidney cancer was not part of the VA list as diseases associated with herbicide exposure and “whether or not it will be listed in the future is unknown at this time.” The provider stated that “common sense would conclude that if Prostate Cancer is associated with [herbicide exposure] than more likely than not [the Veteran’s] kidney cancer or other cancers he may develop are also associated.” The provider’s letter does not provide an opinion on whether the Veteran’s prostate cancer caused or aggravated the Veteran’s kidney cancer and is lacking any rationale as to why his kidney cancer is related to herbicide exposure. Given the speculative language used, the Board finds the March 2015 opinion inadequate and affords it less probative weight. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993). At the Veteran’s February 2020 hearing, the Veteran testified that he couldn’t recall if he had any sense of kidney issues during his active duty service but did note that “I was just going to the bathroom a lot.” The Veteran also noted that he was in sick call several times but could not recall if it was because of his kidney. The Veteran stated “when I got out of the service, that is when they started checking” and that one day a doctor told him that they were going to check him for prostate cancer “because my result kept coming up that I had some type of cancer.” The Veteran stated that “they didn’t know it was kidney at first [but] they knew about the prostate.” The Veteran then stated that after further review a urologist told the Veteran that he had kidney cancer. The Veteran noted that “they did a prostate and they found it in my kidneys too”. The Veteran testified that his kidney cancer was due to his active duty service because “that is what the doctor told me; the doctor who did the surgery.” The Veteran stated that the doctor told the Veteran “if you got cancer in your prostate and your kidney [from herbicide exposure], it is probably going to spread on up in other organs.” The Veteran noted that the doctor also stated that the surgery was able to remove all of the kidney cancer. The Veteran was afforded a May 2020 VA examination. The VA examiner diagnosed the Veteran with renal cell carcinoma and left renal mass. The examiner noted the onset of the condition began in 2012 with a finding of slightly elevated creatinine and then a finding of a kidney cyst and procedure to remove it in 2013. The examiner also noted the Veteran was diagnosed with prostate cancer in January 2014 and followup evaluations to include a November 2015 abdominal MRI showed no recurrence of renal cell carcinoma. The VA examiner opined that it was less likely than not that the Veteran’s kidney cancer was related to his active duty service to include herbicide exposure. The examiner noted that the Veteran’s STRs were silent for any genitourinary complaints. The examiner noted that the Veteran’s conditions were not included in the list of presumptive conditions associated with herbicide exposure. The VA examiner next found it was less likely than not that the Veteran’s kidney cancer was caused by his prostate cancer. The examiner noted the Veteran’s diagnosis for kidney cancer pre-dated the prostate cancer and there were no records to support a finding of metastasis of prostate cancer. The examiner opined that kidneys were not a common site of metastasis for prostate cancer and osteoblastic lesions in the bone were a more common site for metastasis. The examiner also opined that prostate cancer was not a known etiology of renal mass. The examiner identified a baseline based upon the August 2013 diagnostic test showing the finding of the renal cyst and then the November 2015 abdominal MRI. The examiner found there was no aggravation as a July 2016 diagnostic test found no evidence to suggest the possibility of recurrent or residual tumor from the right partial nephrectomy. As such, the examiner concluded there was no aggravation beyond natural progression from another service-connected disability to include prostate cancer. As the May 2020 VA examiner provided a review and examination of the Veteran’s claims file, made references to pertinent past records and statements consistent with the evidence of record, the Board finds that the VA examination report and medical records documenting the nature and extent of his kidney cancer, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran’s assertions that his kidney cancer was related to his military service to include as related to herbicide exposure and due to his service-connected prostate cancer. Certainly, he is competent to describe experiencing symptoms in service and recurring thereafter. Indeed, treatment records corroborate at least to some extent the Veteran’s history of symptoms. Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the May 2020 VA opinion considered the Veteran’s report of symptomatology. The examiner still found that it was unlikely that his service to include herbicide exposure or his service-connected prostate cancer was related to or the cause of his current diagnosed disability. The Board finds that the Veteran’s assertion is outweighed by the competent opinions of the VA examiner. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). After review of the evidence, the Board finds that the greater weight of evidence is against a finding of service connection for the Veteran’s claimed kidney cancer. Review of the Veteran’s STRs does not show any complaints, treatments or diagnosis for kidney cancer. Although the Veteran testified that he went to the bathroom a lot during service, there are no medical records in the Veteran’s STRs to indicate he complained or sought treatment for this. The Veteran’s October 1970 separation examination indicated the Veteran did not report any issues with or related to his kidneys. The Veteran had testified that “when I got out of the service, that is when they started checking”; however, review of the medical treatment record shows while the Veteran has complaints and treatment relating to his kidney, the earliest competent documentation relating to the Veteran’s kidney cancer was in 2013, many years after the Veteran’s separation from service. In addition, while laboratory reports show findings of elevated creatine levels, it was not until during a June 2013 chest x-ray for complaints of coughing and wheezing that the renal cyst was discovered and therefore operated on. The May 2020 VA examiner considered the Veteran’s report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran’s current kidney cancer was less likely than not incurred in or caused by his active duty service to include herbicide exposure or as due to or aggravated by his service-connected prostate cancer. The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s kidney cancer. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.