Citation Nr: 21020977 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-21 657 DATE: April 8, 2021 ORDER Entitlement to service connection for kidney cancer is denied. FINDING OF FACT The preponderance of the evidence is against finding that kidney cancer began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for kidney cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from December 1970 to July 1972. The Veteran died in December 2017. The Appellant is the Veteran’s sister. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in December 2019 for further development. The Board finds there has been substantial compliance with the terms of its remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 1. Entitlement to service connection for kidney cancer is denied. The appellant contends the Veteran’s kidney cancer is due to his active service; or in the alternative, due to herbicide exposure in Vietnam during service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). The Board notes that the Veteran’s exposure to herbicide agents is conceded, due to his verified service in the Republic of Vietnam. See DD Form 214. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). Furthermore, The National Defense Authorization Act for Fiscal Year 2021 added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116 (a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. Kidney cancer is not on this expansive list. However, the availability of presumptive service connection for a disability based on contaminants or herbicide exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of kidney cancer, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease from service almost 50 years ago. Service medical records are negative for complaints of symptoms and/or a diagnosis of kidney cancer. More importantly, the Board notes that the post-service record is negative for a diagnosis of kidney cancer until 2005, decades after separation from service. In addition, the Board has considered the contention by the appellant’s representative that the Veteran’s kidney cancer was caused by the medication taken for his non-service-connected hypertension, and that the Board should infer a claim for secondary service connection of hypertension to the Veteran’s currently service-connected PTSD. However, there is no medical evidence of record to support this atypical contention. Post-service medical records do not indicate such a connection or indication of such a connection. The Board finds there is not competent medical evidence that relates the Veteran’s kidney cancer to his active duty service. The Veteran contended in statements submitted in 2014 that private and VA treatment records provide a nexus between his herbicide exposure during service and his kidney cancer. However, the Board notes that after all available private and VA treatment records have been associated with the record, none include evidence supporting his contention of a nexus. The RO did not arrange for an examination or seek a medical opinion in relation to this claim, but absent any competent medical evidence suggesting that kidney cancer might be related to his service or non-service connected hypertension, an examination to secure a medical nexus opinion is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is important for the appellant to understand that the medical records provide highly probative evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that this problem is the result of service from more than 50 years ago, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.