Citation Nr: 21028851 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-24 586 DATE: May 12, 2021 ORDER Service connection for kidney cancer post nephrectomy with no recurrence (hereinafter "kidney cancer"), is denied. FINDINGS OF FACT 1. The Veteran's kidney cancer is not related to an in-service injury or disease, including to his herbicide agent exposure. 2. The Veteran's kidney cancer is not secondary to service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for kidney cancer are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served from December 1969 to December 1971, including service in the Republic of Vietnam. This claim is before the Board of Veterans' Appeals (Board) following a September 2011 rating decision by the Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. In November 2019, the Board remanded the claims for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). In order to establish service connection on a secondary basis, there must be (1) a current non-service-connected disability, (2) a service-connected disability, and (3) evidence showing that the current non-service-connected disability is either proximately due to or the result of, or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310. Kidney cancer The Veteran contends that his kidney cancer is related to exposure to herbicides during his service in Vietnam or, in the alternative, to his service-connected prostate cancer. The Veteran's service treatment records do not show that this condition began in service. The Veteran was first treated for his left renal cell carcinoma in 1998. The Veteran's in-service exposure to herbicide agents is presumed based on his service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Although renal cell carcinoma is not listed among the diseases that are presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), the Veteran may still be entitled to service connection on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). Upon review, the Board finds that service connection for kidney cancer cannot be granted on a direct basis. While the Veteran has a current disease, kidney cancer, and an in-service event, exposure to herbicide agents, there is no evidence showing a medical nexus between the two. A January 2020 VA examiner, who examined the Veteran and reviewed the claims file including relevant medical literature and scientific publications, opined that it is less likely than not that the Veteran's kidney cancer is related to military service, including herbicide exposure. The examiner indicated that the herbicide agents to which the Veteran may have been exposed do not cause kidney cancer. In support of the claim, the Veteran's representative submitted two articles discussing a study suggesting a link between herbicide exposure and kidney cancer as well as a decision from the Board linking another Veteran's kidney cancer to herbicide agents. Both articles indicate there may be a link between kidney cancer and herbicide agents, not that there is a definite connection. In fact, one article said more information is needed to establish a linkage. Relying on the text of the articles, the Board does not find the referenced study creates a link between kidney cancer and herbicide agents. The January 2020 VA examiner cited the Reports of Carcinogens, fourteenth edition; The National Institute for Occupational Safety and Health; and Veterans and Agent Orange Update 2018 and other sources in justifying his conclusions. None of the aforementioned sources link TCDD, the herbicide agent to which the Veteran was exposed, to kidney cancer. Moreover, the Board is unable to draw similarities between the cited Board decisions without seeing the records that were relied. Each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants such as the Veteran who may appear to be similarly placed. 38 C.F.R. § 20.1303. Given that there is no medical evidence of record that contradicts the opinion of the January 2020 VA examiner, the Board finds that service connection on a direct basis is not warranted. The claim also fails on secondary service connection basis. While the Veteran has a current disability and a service-connected disability, prostate cancer, the evidence does not support a connection between kidney and prostate cancers. According to the January 2020 VA examiner, the Veteran's renal cancer was not caused or aggravated by his service-connected prostate cancer. In support of this statement, the examiner relied on medical literature to reason that the renal cancer occurred prior to the onset of the service-connected prostate cancer and renal cell carcinoma and prostate adenocarcinoma are of two unrelated histologic cell types. Again, no medical evidence has been submitted to contradict the VA examiner's opinion. (Continued on the next page) To the extent that the Veteran contends that his kidney cancer is due to his period of service or a service-connected disability, the Board finds that the issue of a relationship to service or a service-connected disability for kidney cancer is a complex medical question outside of the scope of lay diagnosis. The complex medical question designation is appropriate because of the time lapse from service to symptom onset and internal disease processes involved. Thus, the relationship question extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current disability is related to the Veteran's active military service or a service-connected disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and service connection must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chalker, Phillip 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.