Citation Nr: 21011944 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-23 330 DATE: March 3, 2021 ORDER Entitlement to service connection for renal cell carcinoma (claimed as kidney cancer) as a result of exposure to ionizing radiation is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his renal cell carcinoma is related to exposure to ionizing radiation during service. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In August 2014 the Veteran filed a notice of disagreement (NOD) and in May 2015 the RO issued a statement of the case (SOC). In July 2015, the Veteran timely filed a substantive appeal and requested a video conference hearing. In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of the hearing has been associated with the Veteran’s electronic claims file. At the hearing, the Veteran’s representative requested that the Board hold the case for 90 days to allow for the submission of evidence and argument. In light of the full grant of the benefit sought on appeal below, the Board finds that the extension request is moot. Entitlement to service connection for renal cell carcinoma (claimed as kidney cancer) as a result of exposure to ionizing radiation is granted. The Veteran is seeking service connection for renal cell carcinoma. Specifically, he contends that his disability is due to exposure to ionizing radiation while performing maintenance on nuclear reactor steam generators on nuclear powered submarines during service. See July 2013 Claim. A veteran is entitled to VA disability compensation if there is a current disability resulting from a personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in a disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases including sensorineural hearing loss to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307 ) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Following a review of the record, the Board finds that service connection for renal cell carcinoma is warranted. Specifically, the Veteran has a diagnosis of renal cell carcinoma. See November 2012 Private Treatment Record. In addition, in his 1978 separation examination, the examiner noted that the Veteran was exposed to ionizing radiation during service and had not been exposed prior to service. As such the first and second elements of service connection are met. The salient question is thus whether the Veteran’s OSA is related to service. Here, in a May 2014 memorandum, the director of compensation service opined that the Veteran’s exposure during service was not sufficient to cause his renal cell cancer. He based his opinion on the position of the Under Secretary for Health. In July 2014 private treatment record, however, the Veteran’s physician opined that it is at least as likely as not that the Veteran’s renal cell carcinoma is due to exposure to ionizing radiation during service. He explained that the Veteran was exposed to such radiation during service and he had no genetic predisposition to such a condition. Furthermore, in an October 2014 statement in support of claim, the Veteran asserted that when exposed to radiation, his protective gear was not always sufficient. See also January 2021 Buddy Statement; November 2020 Correspondence (medical literature). Reviewing the evidence of record, the Board finds the July 2014 private opinion probative as the clinician noted review of the Veteran’s medical history, service history, and lay assertions. Contrastingly, the Board notes that in the May 2014 memorandum, the Director provides an opinion and fails to address the Veteran’s medical history or lay assertions. As such the Board affords the May 2014 memorandum of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the foregoing, the Board finds that the evidence as to whether the Veteran’s renal cell carcinoma is related to service is both positive and negative and is, at the very least, in relative equipoise. As such, the Board resolves reasonable doubt in the Veteran’s favor and finds that the Veteran’s renal cell carcinoma is related to service and that the third element of service connection has been met. Gilbert, supra. Accordingly, as the three elements of service connection have been met and service connection for the Veteran’s renal cell carcinoma is warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.