Citation Nr: 21013963 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 12-26 411 DATE: March 11, 2021 ORDER Service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum is granted. FINDING OF FACT The Veteran’s renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum is the result of in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 to January 1980, which included combat service in the Republic of Vietnam. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office. In March 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. In January 2018, the Board denied claim on appeal, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Memorandum Decision, the Court remanded the case to the Board. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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 present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, certain diseases are considered service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. These diseases include several types of cancer, but not renal cell carcinoma or any type of kidney cancer. See 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum is granted. As reflected in March 2011 and November 2012 statements and in his March 2016 testimony before the Board, the Veteran contends that his currently diagnosed renal cell carcinoma with metastatic recurrence in the left lung mediastinum is the result of his in-service Agent Orange and/or diesel fume exposure. The Veteran had combat service in the Republic of Vietnam during the Vietnam Era, and is therefore presumed to have been exposed to Agent Orange in service. The Veteran was diagnosed with renal cell carcinoma in 2004, and subsequently underwent a left nephrectomy and has had diagnosed metastatic recurrence in mediastinum in the left lung. A Veterans Health Administration oncologist, in 2016 and 2017 opinions, reviewed the record and concluded that it was not at least as likely as not that the Veteran’s renal cell carcinoma with metastatic recurrence in the left lung mediastinum was the result of in-service exposure to Agent Orange. The examiner noted that extensive studies of Vietnam Veterans to Agent Orange and the development of cancer did not support an association of Agent Orange exposure and subsequent development of kidney cancer, and that no peer-reviewed publications supported a link between Agent Orange exposure and kidney cancer. Following the Court’s September 2019 Memorandum Decision, the Veteran submitted a private November 2019 medical opinion from Dr. C.K., expressing that the Veteran’s in-service exposure to herbicides was at least as likely as not the cause of his kidney cancer. Specifically, Dr. C.K. opined that chemicals contained in such herbicides, including Dioxins and arsenic, had been linked to kidney cancer in large epidemiological studies, and that the Veteran’s kidney cancer was consistent with that following such exposures. Considering the above, the Board finds the evidence as to whether the Veteran’s renal cell carcinoma is the result of his in-service exposure to herbicide agents to be in relative equipoise. Resolving reasonable doubt in his favor, the Board finds that his renal cell carcinoma is the result of such exposure. Accordingly, service connection for renal cell carcinoma status post left nephrectomy with metastatic recurrence in the left lung mediastinum is granted. See 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.