Citation Nr: 21029873 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-21 955 DATE: May 17, 2021 ORDER Entitlement to service connection for benign neoplasm of the kidney, status post left nephrectomy, to include as due to exposure to ionizing radiation, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's benign neoplasm of the kidney, status post left nephrectomy, began during active service, or is otherwise related to an in-service injury or disease, to include conceded exposure to ionizing radiation. CONCLUSION OF LAW The criteria for entitlement to service connection for benign neoplasm of the kidney, status post left nephrectomy, to include as due to exposure to ionizing radiation, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1965. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 Board Hearing. The claims file contains a transcript of the hearing. The Veteran also has an appeal pending regarding entitlement to non-service-connected pension benefits. That appeal will be decided in a separate Board decision. The Veteran contends that he has a kidney condition (and residuals of a left nephrectomy) that was caused by exposure to ionizing radiation during his participation in Operation Dominic (which involved nuclear weapons tests). 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). Presumptive service connection is available for certain diseases if they become manifest in a radiation-exposed veteran. 38 C.F.R. § 3.309(d). Most relevantly to this appeal, the diseases include cancer of the urinary tract. 38 C.F.R. § 3.309(d)(2). A note in the regulations clarifies that, for purposes of section 3.309(d), "the term 'urinary tract' means the kidneys, renal pelves, ureters, urinary bladder, and urethra." Consequently, kidney cancer is one of the diseases subject to presumptive service connection under section 3.309(d). As noted, the presumption only applies to radiation-exposed veterans. The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). The term radiation-risk activity includes onsite participation in a text involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii)(A). The term atmospheric detonation includes underwater nuclear detonations. 38 C.F.R. § 3.309(d)(3)(iii). The term onsite participation means, during the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A). For tests conducted by the United States, the term operational period includes, for Operation Dominic I, the period April 25, 1962 through December 31, 1962. As VA has previously conceded, the Veteran participated in Operation Dominic I, therefore, he is a radiation-exposed Veteran. The presumptions of 38 C.F.R. § 3.309(d) apply. 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. The Board concludes that, while the Veteran had a diagnosis of benign neoplasm of the kidney and is status post left nephrectomy, and evidence shows that he participated in Operation Dominic and, consequently, is presumed to have been exposed to ionizing radiation (i.e., he is a "radiation-exposed veteran"), the preponderance of the evidence weighs against finding that the Veteran's diagnosis of benign neoplasm of the kidney began during service or is otherwise related to an in-service injury, event, or disease. Importantly, the Veteran filed a claim of entitlement to service connection for malignant neoplasm of the kidney due to exposure to ionizing radiation. See August 2015 VA 21-526EZ. Together with his claim for benefits, he submitted medical records including pre-surgery consent forms and medical records indicating an initial diagnosis of "malignant neoplasm of kidney, except pelvis" with plans to remove the affected, left kidney. August 2015 Private Progress Note. This presented a prima facie case for presumptive service connection for kidney cancer based on exposure to ionizing radiation. However, fortunately for the Veteran's health, the final pathologic diagnosis after the surgery was radical nephrectomy with multiple renal oncocytomas. See August 2015 Private Pathology Report. The Veteran was provided a VA examination and, based on all the records, the examiner noted a diagnosis of left kidney, radical nephrectomy, secondary to benign tumor without any additional treatments or residual problems/complications. Because the multiple masses on the Veteran's left kidney turned out not to be malignant (i.e., cancerous), his diagnosed kidney condition is not included on the list of diseases that are subject to presumptive service connection under 38 C.F.R. § 3.309(d). This does not end the analysis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (holding that VA must consider direct service connection where presumptive service connection is not warranted) With respect to direct service connection, there is no evidence indicating that the benign neoplasms of the kidney are or may be associated with the Veteran's in-service exposure to ionizing radiation. The Veteran has not submitted any medical opinions or identified any competent evidence suggesting that there might be a connection between the benign neoplasms of the kidney and the in-service exposure. At his March 2021 Board Hearing, he testified that he was not aware of anyone else he served with experiencing similar medical problems due to exposure to ionizing radiation (Tr. at 4), that none of his doctors ever suggested to him that the benign growth was related to the in-service radiation exposure (Tr. at 6), and that he had not seen any research (among the voluminous research he obviously reviewed with respect to the effects of radiation) that linked benign tumors of the kidney to radiation exposure (Tr. at 6). And, in fact, the medical literature and other articles that he submitted did not contain any reference to benign neoplasms of the kidney and did not otherwise suggest any connection between radiation and benign neoplasms of the kidney. Notably, he submitted a printout from a VA website listing "other diseases associated with radiation exposure" and stating that VA recognizes that the following diseases are possibly caused by exposure to ionizing radiation: 1. All cancers, 2. Non-malignant thyroid nodular disease, 3. Parathyroid adenoma, 4. Posterior subcapsular cataracts, and 5. Tumors of the brain and central nervous system. See April 2017 Submission by Veteran. The list includes "non-malignant" disease of the thyroid and "tumors" of the brain and central nervous system, which indicates there are non-cancerous growths (whether neoplasms, tumors, or otherwise) that VA recognizes as possibly associated with radiation, but benign neoplasms or tumors of the kidney are not included in that list of conditions possibly associated with radiation exposure. None of the other material in the Veteran's submission suggests a possible association. While the fact the Veteran's diagnosed neoplasms are not on the list of conditions presumptively related to radiation exposure does not automatically mean service connection is denied, there must be some competent evidence suggesting the condition is related to service. The Veteran has not submitted or identified any evidence tending to establish that his benign neoplasms of the kidney may be associated with radiation exposure. The Board's independent review of the record reveals no evidence that would support finding any such association. The Board acknowledges that the Veteran believes that his benign neoplasms of the kidney were related to his participation in Operation Dominic I and consequent exposure to ionizing radiation. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the effects of radiation on the body, the causes and pathology of the diagnosed kidney condition (i.e., benign neoplasms/oncocytomas), and the interpretation of technical pathology reports. 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). Moreover, when asked the basis of his opinion, he merely asserted his lay understanding that radiation exposure may have harmful effects and he was exposed to radiation. Consequently, the Board gives no probative weight to the Veteran's lay assertions of causation. The evidence of record is against finding that the Veteran's benign neoplasm of the kidney, status post left nephrectomy, was caused by or was otherwise associated with his conceded in-service exposure to ionizing radiation. The Veteran has not asserted, and the evidence is against finding, that the condition was otherwise incurred during service or that it is due to any other in-service injury, disease, or event. Entitlement to service connection for benign neoplasm of the kidney, status post left nephrectomy, to include as due to exposure to ionizing radiation is denied. Duties to Notify and Assist As discussed in the merits section, the evidence was against finding that the Veteran's benign neoplasm of the kidney may have been associated with any in-service injury, disease, or event, to include exposure to ionizing radiation. The condition is not one of the disease VA recognizes as possibly associated with such exposure and there is not any other competent evidence of record suggesting a possible association. The Veteran has not argued that further VA examinations or opinions are required, and, on this record, the Board concludes that no further examinations or opinions are necessary prior to deciding the merits of the claim. Without competent evidence suggesting a relationship is possible, there is no duty to obtain any further medical opinions. See also 38 C.F.R. § 3.311(b)(4) ("If a claim is based on a disease other than one of those listed . . . VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease."). Here, the Veteran's diagnosed benign neoplasm of the kidney is not listed in 38 C.F.R. § 3.311, and he has not cited or submitted any competent evidence the condition is possibly a radiogenic disease. The Veteran has not raised any specific issues with the duty to notify or duty to assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.