Citation Nr: 21026707 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-15 062 DATE: May 3, 2021 ORDER Entitlement to service connection for renal cell carcinoma is denied. FINDING OF FACT The Veteran's renal cell carcinoma did not manifest in service or to a compensable degree within one year of separation from active service, and is otherwise unrelated to service, to include as secondary to service-connected diabetes mellitus and presumed herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2020. A transcript is of record. In January 2021, the Board remanded the appeal for additional development which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for renal cell carcinoma The Veteran contends that his renal cell carcinoma was the result of herbicide agent exposure, including Agent Orange. Alternatively, he contends that his renal cell carcinoma is secondary to his service-connected diabetes mellitus. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service connection may be granted for 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). Additionally, the law provides that a veteran shall be presumed to have been exposed to certain herbicide agents where the evidence can establish the veteran served on active duty in one of a few specific locations. 38 C.F.R. § 3.307. Review of the Veteran's DD Form 214 confirms service in the Republic of Vietnam during the presumptive period. As there is no affirmative evidence to the contrary, exposure to herbicide agents is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). Renal cell carcinoma is not, however, a presumptive disorder due to herbicide exposure under these regulations. Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The Board concludes that, while the Veteran has a current diagnosis of renal cell carcinoma, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of renal cell carcinoma began during service or is otherwise related to an in-service injury, event, or disease, including exposure to Agent Orange or secondary to service-connected diabetes. Service treatment records are silent for complaint, treatment, or diagnosis related to renal cell carcinoma. After service, the Veteran was first diagnosed in July 2015 with large solid left renal mass, determined to most likely be renal cell carcinoma. A September 2015 pathology note of the renal mass was positive for malignancy and testing showed renal cell carcinoma, clear cell type. The Veteran was afforded a VA examination in December 2015. The examiner opined that the Veteran's renal cell carcinoma is not at least as likely as not incurred or caused by the Veteran's possible Agent Orange or herbicide exposure while on active duty in Vietnam. She explained the Institute of Medicine (IOM) is an independent, civilian, scientific organization tasked with objectively evaluating all medical data concerning Agent Orange exposure. She explained that IOM has determined there is no association between Agent Orange exposure and increased risk for the development of renal cell carcinoma. Further, her review of the current RCC medical literature was consistent with the established IOM position. Thus, she concluded the Veteran's left renal cell carcinoma was not due to or the result of Agent Orange exposure. In March 2016, the Veteran submitted a February 2016 letter from private physician, Dr. S.W. who opined that there may be some linkage between Agent Orange and renal cell carcinoma. In October 2020, the Veteran submitted a letter from Dr. S.W. She opined that diabetes in general weakens the immune system, and that this can in turn make people more prone to cancer. In November 2020, the Veteran submitted a letter from private physician, Dr. G.L. He indicated that he was writing to comment on data supporting a link between diabetes and renal cell carcinoma. He noted that while epidemiologic studies to associate these two have varied, studies appear to suggest a hazard ratio of 1.3 or higher compared to background. He stated that it is impossible to concretely attach any single incidence of renal cell carcinoma to any of the myriad risks that exist, such as smoking and obesity. However, he concluded that data suggests that there is some linkage to diabetes as well. Pursuant to the remand, the Veteran was afforded a VA examination in February 2021. The examiner opined the Veteran's renal cell carcinoma is less likely than not proximately due to or aggravated by his service-connected diabetes mellitus. She explained that renal cell carcinoma is at least as likely due to gene mutations in humans. Further, there are numerous possible events or exposure conditions that could initiate the abnormal cell process, which eventually leads to developing cancer in humans. She noted these include radiation exposure, smoking, age, family history, or pre-existing renal disease. She concluded that there was no clinical research data known regarding diabetes mellitus causing renal cell carcinoma, as these medical conditions have absolutely different pathophysiological processes and etiology of occurrence. She also indicated that there is no known clinical data regarding aggravation of renal cell carcinoma by diabetes mellitus, including its complications. The examiner also noted that, with regards to renal cell carcinoma due to Agent Orange exposure, Agent Orange is linked to numerous types of cancer. She opined that it is not clinically possible to exclude renal cell carcinoma from the types of cancer associated with Agent Orange exposure because medical literature indicates the chemicals in Agent Orange were extremely toxic. She cited to one source that concluded that better data is needed to determine whether exposure to those chemicals should be considered a risk factor for kidney cancer. At the outset, the Board notes that the Veteran's renal cell carcinoma is not listed in § 3.309(e) as a disease entitled to presumptive service connection due to exposure to herbicide agents. Although the Board notes the Veteran's sincere belief as to the matter, his lay opinion that his cancer is related to herbicide agent exposure or secondary to service-connected diabetes is not competent evidence because this is a complex medical question. Such a determination involves multi-organ systems and the disease progression of renal cancer, matters for which medical expertise is required. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); Jandreau v. Shinseki, 492 F.3d 1372 (2007). The record also does not show that the Veteran's renal cancer was present in service or for decades thereafter. The earliest evidence of cancer was in 2015, many decades after the Veteran's discharge from service, and well beyond the one-year presumptive period after service for manifestation of a malignant tumor as a chronic disease under 38 U.S.C. §§ 1112 and 1137 and 38 C.F.R. §§ 3.307, 3.309. Service connection must still be considered on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The competent and most probative evidence of record does not support direct service connection. The cumulative evidence shows that renal cancer did not onset in service and is not otherwise related to service, to include as a result of exposure to an herbicide agent. The record contains conflicting medical opinions regarding whether the Veteran's renal cell carcinoma is at least as likely as not related to an in-service injury, event, or disease. In a December 2015 opinion and a February 2021 addendum opinion, VA examiners opined that the Veteran's renal cell carcinoma is not at least as likely as not related to an in-service injury, event, or disease, including as a result of herbicide exposure or as secondary to service-connected diabetes mellitus. The December 2015 opinion explained that the IOM had determined there was no evidence of a relationship, and that the medical literature the examiner had reviewed also did not support an increased risk for renal cell carcinoma due to herbicide agent or Agent Orange exposure. The February 2021 opinion explained that there was no clinical research data showing that renal cell carcinoma is proximately due to or aggravated by the Veteran's service-connected diabetes mellitus. The examiners' opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With respect to the February 2021 opinion proffered on the possible causal relationship between renal cell carcinoma and herbicide agents, the Board finds it of little probative value because it is speculative in nature. Indeed, the examiner indicated that while it is not clinically possible to exclude renal cell carcinoma from the types of cancer associated with Agent Orange exposure, she also indicated better data is needed to determine whether exposure to those chemicals should be considered a risk factor for kidney cancer. As the examiner indicates the medical community at large has not yet established whether exposure herbicide agent chemicals should even be considered a risk factor for kidney cancer because that additional research in that regard is needed, her opinion does not meet the threshold of 'at least as likely as not' and does not serve to establish a relationship between increased risk for RCC and Agent Orange exposure. The private opinions by Dr. S.W. and Dr. G.L. are less probative than the VA opinion. In the February 2016 opinion, Dr. S.W. opined that there 'may be' some linkage between Agent Orange and renal cell carcinoma. This opinion, couched in terms of possibility rather than probability, is of little probative weight. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In the October 2020 opinion, she opined that diabetes weakens the immune system, which can make people more prone to cancer. This opinion does not address the Veteran's unique circumstances, but rather discusses in vague generalities, whether persons with weakened immune systems could be more prone to cancer. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide sufficient basis upon which to support a claim for service connection. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Finally, Dr. G.L. indicated that roughly 25 percent of patients with kidney disease also have diabetes mellitus, and epidemiological studies suggest a hazard ratio of 1.3 between renal cell carcinoma and diabetes compared to background. Thus, he concluded that data suggests some linkage with diabetes. This opinion is couched in terms of possibilities, rather than probability, and lacks specificity to the facts of the Veteran's case . Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, it is of limited probative value. The Veteran believes his renal cell carcinoma is related to an in-service injury, event, or disease, but he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions of record. Ultimately, the competent and most persuasive evidence of record does not support a nexus between the Veteran's renal cell carcinoma and his active service, to include due to exposure to herbicide agents or secondary to service-connected diabetes. Accordingly, the benefit of the doubt rule does not apply and service connection for renal cell carcinoma is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.