Citation Nr: 21012864 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-33 703A DATE: March 5, 2021 ORDER Entitlement to service connection for status post left nephrectomy with renal cell carcinoma (kidney cancer), including as due to herbicide agent exposure, is denied. Entitlement to service connection for skin cancer to include squamous cell carcinoma of the left ear and cancer of the left forearm (skin cancer), including as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran’s kidney cancer did not manifest to a compensable degree within an applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including exposure to herbicide agents. 2. The Veteran’s skin cancer did not manifest to a compensable degree within an applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 2. The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 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 February 1967 to February 1970, to include service in Thailand. The Veteran died in October 2013. The Appellant, his surviving spouse, has been substituted for the Veteran for these two claims to determine whether accrued benefits should be awarded. The Board previously remanded these claims for a hearing. In December 2017, the Appellant appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Board also remanded this appeal for additional development in Just 2020. The appeal has been returned to the Board for further appellate review. Before he died, the Veteran, and now the Appellant, asserted he developed kidney cancer and skin cancer due to exposure to herbicide agents such as Agent Orange. The Veteran served at Korat Royal Thai Air Force Base, and the RO determined in February 2019 that he was exposed to herbicide agents while there. While certain diseases are presumed to be related to a Veteran’s exposure to herbicide agents, the Veteran’s kidney cancer and skin cancer are not among those diseases. 38 C.F.R. § 3.309(e). However, direct service connection could still be awarded if it is established that this Veteran developed these disabilities due to his specific exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, to establish service connection, a claimant 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as cancer (malignant tumors). See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Kidney cancer. In September 1983, the Veteran was diagnosed with renal cell carcinoma of the left kidney and in May 2009, renal cell carcinoma of the right kidney. Thus, the remaining question is whether the kidney cancer is related to service. Service treatment records show no complaints, diagnosis, or treatment related to kidney cancer or a kidney disability. During the December 1969 separation examination, evaluation of the genitourinary system, including the kidneys was normal. In a corresponding report of medical history, the Veteran specifically denied having had kidney stones or cancer. A kidney disability is not shown by medical evidence until approximately September 1983, many years after the Veteran’s separation from service. As kidney cancer is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of kidney cancer is not shown, in-service incurrence of the kidney cancer cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The remaining question is whether the Veteran’s kidney cancer directly resulted from service, including exposure to herbicide agents. A VA examiner in November 2020 reviewed the record and determined the Veteran’s kidney cancer was not related to service, including herbicide agent exposure. In support of this conclusion, the examiner explained that there is no evidence of renal cell carcinoma while in service, and the Veteran’s kidney cancer was first diagnosed in 1983, 14 years after service, which made it less likely than not that the Veteran’s kidney cancer resulted from service. The Board interprets this statement as an opinion that the onset of kidney cancer is too long after service for it to be related to service. This includes kidney cancer as caused by herbicide agent exposure according to the examiner. The examiner further noted that current, widely accepted, peer-reviewed literature has not established herbicide agents as a cause for renal cell carcinoma. The Board has interpreted his conclusion is that medical knowledge cannot say there is at least a 50 percent probability herbicide exposure results in a kidney cancer such as renal cell carcinoma. See Wise v. Shinseki, 26 Vet. App. 517 (2014) (while the Board can consider the extent a scientific theory is accepted in the scientific community, it cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule). The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s and the Appellant’s statements, to include assertions that the disability is related to service, specifically herbicide agent exposure. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board acknowledges that the Appellant is a registered nurse, but she offers no rationale for any opinion other than by noting the Veteran’s herbicide agent exposure, which is acknowledged by VA, and his family history. The Board ultimately assigns greater probative weight to the VA medical opinion which was rendered by a trained medical professional based on a full review of the evidence and reasonably drawn conclusions with supportive rationale based upon medical knowledge and literature. For the above reasons, the preponderance of the evidence is against the claim and service connection for kidney cancer is denied. 2. Skin cancer. Before his death, the Veteran was diagnosed with two forms of skin cancer, spindle cell carcinoma in the left ear in March 2009 and basal cell carcinoma in February 2001. As with his kidney cancer, the Veteran and the Appellant assert the skin cancers resulted from his acknowledged herbicide agent exposure. Service treatment records show no complaints, diagnosis, or treatment related to skin cancer. During the December 1969 separation examination, evaluation of the skin was normal. In a corresponding report of medical history, the Veteran specifically denied having had any symptoms related to the skin. If such symptoms were present during service, the Board would expect the Veteran would have responded “yes” when asked if he had skin diseases at separation because a reasonable person would have interpreted the question to include symptoms related to the skin. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having symptoms affecting the skin. Skin cancer is not shown by medical evidence until approximately February 2001, many years after the Veteran’s separation from service. As skin cancer is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of skin cancer is not shown, in-service incurrence of either skin cancer cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The remaining question is whether the Veteran’s skin cancer directly resulted from service, including exposure to herbicide agents. A VA examiner in November 2020 reviewed the record and determined the Veteran’s skin cancers were not related to service, including herbicide agent exposure. In support of this conclusion, the examiner explained that there was no evidence of skin cancer during service. The examiner again found it significant that the cancers were not diagnosed until many years after the Veteran’s service. The examiner further noted that the cause of spindle cell carcinoma has not been determined but that a strong genetic link or mutation is suspected. Moreover, according to the examiner, the current, widely accepted, peer-reviewed literature has not established herbicide agents as a cause for skin cancer, including spindle cell carcinoma. The Board has interpreted his conclusion is that medical knowledge cannot say there is at least a 50 percent probability herbicide exposure results in skin cancer. See Wise, 26 Vet. App. 517. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Again, the Veteran as a lay person was not competent to offer an opinion on a complex medical issue such as the etiology of cancer. The Appellant, a nurse, did not offer a rationale for any opinion offered other than by noting the Veteran’s herbicide agent exposure, which is acknowledged by VA, and his family history. The Board ultimately assigns greater probative weight to the VA medical opinion which was rendered by a trained medical professional based on a full review of the evidence and reasonably drawn conclusions with supportive rationale based upon medical knowledge and literature. For the above reasons, the preponderance of the evidence is against the claim and service connection for skin cancer is denied Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.