Citation Nr: 21015030 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-33 352A DATE: March 16, 2021 ORDER Service connection for bladder cancer is granted. Service connection for kidney cancer is denied. FINDINGS OF FACT 1. Bladder cancer is due to his presumed exposure to herbicide agents in the Republic of Vietnam. 2. The Veteran’s kidney cancer was not manifest in service or within one year and the disability is not otherwise related to service to include presumed herbicide agent exposure. CONCLUSIONS OF LAW 1. Bladder cancer is presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for kidney cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 June 1967 to May 1971, to include service in Vietnam. He appeals an August 2014 rating decision. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases such as malignant tumors will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, the law provides a presumption of service connection for certain diseases, associated with exposure to herbicide agents that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307 (a)(6)(i). Veterans who during active military, naval, or air service, served in the Republic of Vietnam are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Even if a Veteran does not qualify for the presumption of herbicide agent exposure, the Veteran may establish in-service exposure to an herbicide agent if the evidence indicates that it is at least as likely as not that such exposure occurred. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (holding that the availability of a presumption does not preclude establishing the same facts by evidence); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran is presumed exposed to herbicide agents by virtue of his service in Vietnam. He seeks service connection for both of these cancers under the theory that they were caused by exposure to herbicide agents in Vietnam. There is current disability of bladder cancer first manifested years after service, as reflected in treatment records dated from 2013. Likewise, kidney cancer is noted as having been diagnosed in May 2006, with a nephrectomy for large, organ confirmed renal cell carcinoma at that time. Service treatment records (STRs) are silent for treatment or complaints related to bladder or kidney cancer, and the Veteran’s separation examination in April 1971 reflects normal genitourinary system and a denial of frequent or painful urination, kidney stones or blood in urine, or sugar or albumin in urine. Currently, kidney cancer is not a disease for which there is a herbicide presumption of service connection according to the aforementioned regulations related to herbicides. The law regarding bladder cancer was changed. However, the governing regulations do not preclude the appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). This is discussed below. 1. Service connection for bladder cancer is granted. The Veteran’s urologist W.A.R., M.D., wrote an opinion in June 2014 as follows: Recent Information on Herbicides and Bladder and Kidney Cancer. I have received recent published information on herbicides and their causative relationship to bladder cancer and kidney cancer. [The Veteran] has had both malignancies and served in the armed forces in Viet Nam and reported exposure to herbicides. After reviewing the literature, I believe the bladder and kidney cancers that I have treated are likely caused by his exposure to herbicides particularly Agent Blue while stationed in Viet Nam. Information provided along with Dr. W.’s report included article on Agent Blue, ‘one of the rainbow agents used during the Vietnam war’, kidney cancers linked to arsenic in drinking water, a portion of an act entitled ‘Victims of Agent Orange Relief Act of 2013, an article on Agent Blue, and an article on Vietnam Veterans with Bladder Cancer. Thereafter, a VA physician reviewed the claims folder and rendered a negative opinion in July 2014. The opinion was: Based on the above, there is not a nexus between the Veteran's military service, to include herbicide exposure and his post-service history of bladder cancer. The VA examiner found that Dr. R.’s report lacked a detailed rationale and also explained that the most recent Institute of Medicine (IOM) study on Agent Orange and bladder cancer was unfavorable to the claim. Here, it was noted in pertinent part: The specific issue of bladder cancer has been covered in the latest version of the IOM Agent Orange report, and the conclusion is unfavorable to the Veteran's claim: "Conclusion On the basis of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and bladder cancer." (http://www.nap.edu/openbook.php?record_id=18395&page=526 as of 7/14/2014) The specific issue of kidney cancer has also been covered in the latest version of the IOM Agent Orange report, and the conclusion is unfavorable to the Veteran's claim: "Conclusion On the basis of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the COIs and renal cancer." (http://www.nap.edu/openbook.php?record_id=18395&page=537 as of 7/14/2014) It should be noted that the above mentioned "chemicals of interest" (COIs) include those related to Agent Orange AND Agent Blue (cacodylic acid). (http://www.nap.edu/openbook.php?record_id=18395&page=33 as of 7/14/2014) (http://books.nap.edu/openbook.php?record_id=2141&page=89, page 89, indicates "Blue was the code designation for a liquid formulation of cacodylic acid and its sodium salt", online as of 7/14/2014) As noted above, if the IOM doesn't find at least an association, there is not a good argument for causation/direct connection to service. The IOM has since published an update that relates to bladder cancer. In March 2016, the IOM reviewed new research on a potential link between bladder cancer and Agent Orange exposure and concluded that there was now "limited or suggestive" evidence of an association (previously, there was "inadequate or insufficient" evidence of a link). See Veterans and Agent Orange: Update 2014 (released March 10, 2016). Subsequent Updates have continued to note the "limited or suggestive" evidence of an association, including the most recent 2018 Update. Here, the Veteran is presumed to have been exposed to herbicides. He was later diagnosed with bladder cancer which his treating urologist opined was related to the Veteran's in-service exposure to herbicides. Then, the VA examiner’s opinion was against so finding, but was supported in large part by the now-outdated IOM report. The combination of the significant IOM updates since 2016 regarding a relationship between herbicide agent exposure in Vietnam and bladder cancer, and Dr. R.’s opinion, is highly probative evidence in favor of the claim. Dr. R.’s rationale was based on the Veteran's service, pertinent medical records, and the doctor’s interpretation of information related to bladder cancer and herbicides, informed by his own training, knowledge, and expertise. Together, they are at least as probative as the VA doctor’s opinion that is partially based on the outdated IOM report. Accordingly, the Board finds that the evidence for and against the claim is now at least in equipoise. More importantly, bladder cancer is now a presumptive disease. Here, there is inadequate evidence to rebut the presumption. Therefore, reasonable doubt must be resolved in favor of the appellant and entitlement to service connection for bladder cancer is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for kidney cancer is denied. With regard to kidney cancer, the preponderance of the evidence is against finding disability based on in-service herbicide exposure by demonstrating “direct actual causation.” Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed.Cir.1994). While the IOM updates regarding bladder cancer were sufficient to place the evidence into equipoise, there has been no such update with regard to kidney cancer. Here, we find that the VA examiner’s opinion is highly probative evidence against the claim. That doctor’s rationale was based on the Veteran’s service, pertinent medical records, and that doctor’s interpretation of information related to kidney cancer and herbicides, informed by his own training, knowledge, and expertise. The VA opinion with regard to kidney cancer is highly probative, because it is based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA opinion thoroughly addressed Dr. R.’s medical opinion and the evidence submitted in support of the claim as to kidney cancer, and provided sound reasons for rejecting them. The Board adopts the VA opinion for its reasons and bases as to kidney cancer, noting that the examiner has fairly considered the material evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995). While Veteran believes there is current kidney cancer related to herbicides exposure in Vietnam, and is competent report to pain and symptoms, his opinion is outweighed by the VA medical opinion as to the medically complex matter of the etiology of kidney cancer. Here, there is no proof of kidney cancer in service or within one year of separation. Furthermore, the probative evidence is against a finding that there is any relationship to service, to include presumed herbicide exposure. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.