Citation Nr: 21021977 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-13 200 DATE: April 14, 2021 ORDER Entitlement to service connection for cancer of the right kidney is denied. FINDINGS OF FACT 1. The evidence shows that at no point during the period on appeal, did the Veteran have any diagnosable right kidney disorder capable of VA compensation. 2. The Veteran’s cancer of the right kidney is not etiologically related to his active duty service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for cancer of the right kidney have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 2008 to May 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran indicated disagreement with the denial of a total disability rating due to individual unemployability (TDIU). See November 2013 NOD. The RO subsequently granted a TDIU in the March 2015 rating decision, effective March 17, 2011. This date is the earliest possible date for a TDIU, as it was effective on the date following the Veteran’s last date of employment. The issue of TDIU is considered satisfied, and will not be addressed by the Board. Entitlement to service connection for cancer of the right kidney Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends he developed kidney cancer after returning from Afghanistan while on active duty. The Veteran submitted a letter from his oncologist that stated, in part, “this has likely been present for three to four years, which will have put the time this started at the time he was on active duty in Afghanistan, during which time he was exposed to a number of toxins.” See November 2013 NOD; April 2012 Third Party Correspondence. The Veteran was afforded a VA examination in May 2013 to determine the nature and etiology of his right kidney cancer. The examination notes that the Veteran has been diagnosed with neoplasm of the kidney in November 2011. It was also noted that the Veteran underwent a right nephrectomy in December 2011. See May 2013 VA examination. These diagnoses cannot be service-connected because it fails the first requirement for service connection, the existence of a present disability. It should be noted that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim (even if the disorder later resolves). McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s claim in regards to this issue was received by VA on September 18, 2012. The May 2013 examiner stated that the Veteran does not have any residual conditions or complications due to the neoplasm, including metastases, or its treatment. The examiner also noted the Veteran does not have any other pertinent physical findings, complications, conditions, signs or symptoms, and that the kidney condition does not result in any functional impairment. Without a showing of a current disability, the claim for service connection for cancer of the right kidney must be denied. “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.” Brammer, 3 Vet. App. at 225. Even if the Board were to somehow concede that a current disability exists, the service connection claim would also fail the third prong of direct service connection, a causal relationship between the current disability and the disease or injury incurred during service. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury, event, or illness. The rationale was that the problems experienced in 2009 resolved and did not represent symptoms related to subsequent kidney cancer. In regards to the private medical opinion of April 2012, the examiner stated that the growth rate of renal cell carcinoma is not an established medical fact and available evidence suggests that the growth rate varies widely. The examiner stated that there is no way to establish the actual onset of the disorder. To conclude that it began during service is purely speculation. This medical opinion is highly probative because it was based upon a thorough review of the claims file, medical literature, and well-reasoned rationale. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran’s attorney submitted a letter in July 2019 responding to the May 2013 VA examiner’s conclusions. The attorney replied, “The examiner states that the symptoms and illness were resolved but the medical records referenced above show that he continued to have chronic problems with Oliguria which is low urine output.” The referenced medical records do not support a grant for service connection. The records show chronic problems with oliguria from 2009 to 2010, which is well before the date of claim in 2012. These records do not support a current disability. The attorney also addressed the examiner’s statement that the Veteran did not report genitourinary problems in July 2010 and was asymptomatic in November 2011. The attorney referenced an article from the American Cancer Society stating that “these cancers can sometimes grow quite large without causing any pain or other symptoms.” The Board acknowledges that the Veteran may have had cancer without exhibiting pain or symptoms. This again does not support a grant because it does not prove the existence of a current disability, nor does it link the in-service complaints to renal cancer. Finally, the attorney mentioned the opinion that the private medical doctor’s conclusion was speculation. The attorney wrote, “[Dr. K.] stated in his letter after looking at things this has likely been present for 3 to 4 years. [Dr. K.] is an Oncologist, who specializes in cancer.” The Board finds that this doctor, despite being an Oncologist, has provided a speculative opinion. The only rationale provided indicated that the development of kidney cancer was due to the exposure to toxins while in Afghanistan. This was stated without any knowledge of what toxins the Veteran was exposed to, in what manner of exposure, or how that exposure could have caused cancer in the right kidney. Furthermore, the Oncologist gave a timeframe of 3 to 4 years prior to the date the kidney was resected in December 2011. This potentially puts the development of the carcinoma in December 2007, which is before the Veteran entered active duty service in August 2008. Based on the Oncologist’s own logic, there is no way to determine whether the Veteran developed the cancer before or during active duty service. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Based on the evidence of record, the weight of the competent evidence demonstrates that no current disability exists, and there is no relationship between any possible residuals of right kidney cancer and the Veteran’s military service. Therefore, the Board finds that a preponderance of the medical evidence that is of record weighs against the claim for service connection for right kidney cancer. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.