Citation Nr: 21040516 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 16-49 192 DATE: July 5, 2021 ORDER Entitlement to service connection for renal cell cancer, to include as being due to herbicide exposure, is granted. FINDING OF FACTS 1. The Veteran is presumed to have been exposed to herbicide agents during active duty in the Republic of Vietnam. 2. The medical evidence of record is in relative equipoise that the Veteran's renal cell carcinoma, to include its residuals and metastasis, is caused by his in-service exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma, to include as being due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to April 1972. This matter is on appeal from a June 2015 rating decision and was previously remanded by the Board in December 2018. By way of history, the Veteran's service connection claim for renal cell carcinoma was reopened by the Board in December 2018. It is the Veteran's contention that he developed renal cell carcinoma as a result of his exposure to herbicide agents during his service in the Republic of Vietnam. See March 2003 VA 21-4138 Statement in Support of Claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). However, renal cell cancer is not listed as a presumptive disease under 38 U.S.C. § 3.309(e). But even if a Veteran is not entitled to presumptive service connection for disease as a result of herbicide exposure, VA must also consider whether the claim prevails on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, the Veteran is able to substantiate a claim for service connection on a direct basis if the evidence shows that the Veteran's renal cell carcinoma was caused by or otherwise related to his active duty, to include exposure to herbicide agents in Vietnam. Service treatment records did not reflect any complaints or diagnosis suggestive of kidney cancer. The Veteran's kidneys were clinically evaluated as normal on his separation examination. The first documented signs of the Veteran's renal cell carcinoma in January 2002, approximately 3 decades after service. Private treatment records in August 2002 documented laboratory results which revealed a right renal mass composed of grey-tan soft mass measuring 4x3x2cm. It was confirmed as a renal cell carcinoma. The Veteran ultimately underwent a right nephrectomy to remove the mass. Thus, the first element of service connection is met. The Veteran was afforded a VA examination in May 2014, which noted his January 2002 neoplasm of the kidney diagnosis. After the nephrectomy, the Veteran developed an incisional hernia, which was repaired by a mesh. It was noted that the Veteran had hypertension and/or heart disease due to renal dysfunction or kidney condition. An etiology finding of the renal cell carcinoma, however, was not addressed. The Board notes that the Veteran was evaluated for his prostate cancer in February 2015, which noted that the Veteran was diagnosed with adenocarcinoma prostate in March 2014. The examiner was asked to address whether the Veteran's prostate cancer was a residual of his kidney cancer, to which the examiner found no nexus between the two conditions. In his rationale, the examiner indicated that while the kidney and prostate are both in the male urinary system, there is little to no possibility that his prostate symptoms are related to his previously diagnosed kidney cancer as the diagnoses were made more than 5 years apart, with no evidence of recurrence or distant metastasis. In his August 2015 Notice of Disagreement, the Veteran stated that his VA physician, Dr. G.O. told him that the kidney carcinoma was caused by Agent Orange from his service in Vietnam from 1970 to 1971. When the matter came to the Board in December 2018, it was remanded for additional development. The Board instructed the AOJ to obtain a statement from the Veteran's physician indicating a positive nexus between the Veteran's military service, specifically his herbicide exposure, and his renal cell carcinoma. A new examination was also to be scheduled for the Veteran to determine the etiology of his renal cell carcinoma. Upon remand, the Board notes that the AOJ sent the Veteran a development letter in November 2019 requesting a statement from his physician, Dr. G.O. and any other pertinent medical opinions or treatment records. The Veteran made no response and offered no other medical records to support his claim. VA treatment records in the claims file reflect the Veteran's visits to Dr. G.O. However, the referenced etiology opinion from Dr. G.O. is not in the record. The Veteran was afforded a VA contracted examination in December 2019. There, it was noted that the Veteran had renal cell carcinoma in 2002. His whole right kidney was removed, and he ultimately developed an incisional hernia, which was repaired by mesh. An etiology opinion was issued in a September 2020 in which the examiner found that that the Veteran's condition is at least as likely as not caused by his presumed exposure to herbicide agents while he was stationed in the Republic of Vietnam. A review of the records does not reveal that the Veteran had high risk behaviors or conditions that would put him at risk. He did not drink ETOH nor did he smoke long term. He did have a long history of NSAIDs use for his right knee issues. He was overweight but not morbidly overweight. He did not have diabetes at the time of the nephrectomy for renal cell carcinoma. The most common acquired risk factors for renal cell carcinoma are smoking, hypertension, obesity, chronic analgesic use, and diabetes. The examiner also cited to additional medical article which found that uncontrolled hypertension and its onset for several years may increase risk factors for renal cell carcinoma. The examiner explained that the Veteran had mild hypertension controlled only on low dose lisinopril for years. Thus, as he lacked the majority of pertinent risk factors, Agent Orange was the likely cause of his renal cell carcinoma. An additional medical opinion was issued in early December 2020 in which the examiner Dr. P.G. opined that it was less likely that the Veteran's renal cell carcinoma is related to his military service. Citing to a VA statement about "Cancers caused by Agent Orange Exposure," Dr. P.G.'s rationale was that Agent Orange exposure has not been associated with an increased risk of developing renal cell carcinoma. An addendum opinion was sought by the RO later that same month. In the exam request, the RO, in contradiction of the September 2020 examiner's findings, stated the Veteran had a longstanding diagnosis of hypertension, he is obese, has a longstanding history of NSAIDs usage, and a longstanding history of smoking marijuana. In light of VA's determination that a positive association does not exist between herbicide exposure and renal cancers, the RO requested the examiner provide a rationale. In response, Dr. P.G. acknowledged that the Veteran's presumed exposure to Agent Orange in service. However, the examiner found that renal cell carcinoma is not a cancer caused by Agent Orange as outlined by VA. Therefore, based on the VA regulations, Agent Orange exposure has not been associated with an increased risk of developing renal cell carcinoma. Hence, it is less likely than not that the Veteran's renal cell carcinoma incurred in or was caused by his claimed in-service exposure. In reviewing the claims file, the Veteran clearly has a diagnosis of renal cell carcinoma, in which he was diagnosed after his separation from service. The record also contains both positive and negative medical evidence regarding the etiology of the Veteran's renal cancer. The September 2020 medical examiner found that the Veteran did not engage in high risk behavior, nor did he have high risk conditions that would increase the probability of developing renal cell carcinoma. Therefore, the most likely source causing this renal cancer is Agent Orange. In contrast, the December 2020 medical opinion appears to have adopted the RO's assertions that the Veteran did in fact, possess risk factors such as being overweight, being diabetic, with a long-standing history of chronic uses of NSAIDs, smoking, with a clinical diagnosis of hypertension. Given that the renal cell carcinoma is a not a presumptive disease caused by herbicide exposure, the December 2020 examiner found that it was more likely that the Veteran developed kidney cancer as a result of his risk factors. While contradicting, the Board finds the different medical opinions equally probative. Therefore, the Board finds the evidence is at least in equipoise. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for renal cell cancer. See 38 U.S.C. § 5107. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.