Citation Nr: A21003241 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 200821-105127 DATE: February 10, 2021 ORDER Entitlement to service connection for renal cell carcinoma is granted. FINDING OF FACT The probative evidence establishes that the Veteran’s renal cell carcinoma is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to August 1964. Before the Board of Veterans’ Appeals (Board) is an appeal of a July 2020 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for renal cell carcinoma of the right kidney. The Veteran requested his appeal be placed on the hearing docket. See August 2020 VA Form 10182. Under the hearing docket, the Board is authorized to review the evidence considered by the AOJ up until the July 2020 rating decision, in addition to evidence submitted at the Board hearing or within 90 days of the Board hearing. A Board hearing was held in February 2021. The transcript from the hearing has not yet been associated with the file, as the appeal is being granted under the Board’s “One Touch” program. However, the hearing transcript will be added to the claims file in the ordinary course of business. A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury suffered in active service, or for aggravation of a preexisting injury suffered in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has renal cell carcinoma of the right kidney. See July 2020 rating decision favorable finding. At the February 2021 Board hearing, the Veteran testified his Naval service included firefighting duties, during which he was regularly exposed to jet fuel and fire-retardant foam. The Veteran is competent to report the history and nature of his service, including his regular exposure to foams and fuel. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s military occupational specialty (MOS) is listed as an Aviation Boatswains Mate. See DD Form 214. The Veteran consistently recounted that he was exposed to JP4 jet fuel and “fire-fighting foam” during service. See, e.g.¸ November 2019 Veteran statement; May 2020 Dr. E.H. medical opinion. The Board finds the Veteran’s testimony credible and consistent with the facts and circumstances of his service with no contradictory evidence. Thus, the Board finds the first two elements of service connection have been met. As such, the crux of this case centers on whether the Veteran’s renal cell carcinoma is related to his in-service exposure to chemicals. Of record are five medical opinions for the Board to assess and weigh against the entirety of the record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In January 2020, Dr. E.H., who was the Veteran’s primary care physician from 2012-2018, opined it is more likely than not the Veteran’s “exposure to carcinogens during his military service has led to [his] kidney cancer.” See January 2020 Dr. E.H. medical opinion. Dr. E.H. noted the Veteran’s interaction with the fire-retardant foam and that medical literature states the toxic nature of polyfluoroalkyl substances (PFAS) such as JP4 jet fuel and fire-retardant foam “with respect to several cancers, including renal cell cancer” is well known. Id. As Dr. E.H. knew the Veteran’s pertinent medical history and his rationale considered medical literature and Veteran’s lay statement’s, the Board finds this opinion probative. In May 2020, Dr. B.M., a professor and VA oncologist, opined “it is more likely than not that [the Veteran’s] exposure to perfluorooctanoic acid (PFOA) and perfluorooctanoic sulfonate (PFOS) caused his renal cell carcinoma.” See May 2020 Dr. B.M. medical opinion. As rationale, Dr. B.M. noted the Veteran “had very extensive exposure to PFOS and PFOA” during his Naval service “as a fireman.” Id. He cited to Environmental Protection Agency (EPA) technical reports citing “PFOS and PFOA may cause cancer” and noted epidemiological studies found associations between PFOA exposure and cancer of the kidney. Id. The Board finds this opinion highly probative as he reviewed the Veteran’s pertinent medical history, lay statements, and provided a rationale backed by medical evidence. In June 2020, the Veteran received a VA examination to assess the nature and etiology of his renal cell carcinoma. After examination, the VA examiner provided a positive nexus opinion. See June 2020 VA examination report. He noted “it is at least as likely as not that exposure to PFOA/PFOS is a risk factor to development of renal cell carcinoma” as “epidemiological evidence” has shown “PFOA exposure may be associated with development of renal cell carcinoma.” Id. The VA examiner cited the May 2020 Dr. B.M. opinion and studies by the EPA and World Health Organization (WHO) listing “PFOA as a possible carcinogen.” Id. The Board finds this opinion probative. In March 2020 and July 2020, VA opinions were obtained that provided negative nexus opinions. As rationale, the VA clinicians stated that “environmental exposure links,” such as the literature showing higher rates of renal cell cancer linked in firefighters, is only suggestive. See March 2020 and July 2020 VA medical opinions. The clinicians noted “the strongest associations” regarding the etiology of renal cell carcinoma “seem to be with obesity, smoking, and hypertension prior to renal cell carcinoma.” Id. These opinions are inadequate as the evidence of record notes the Veteran was not a smoker or obese, and he was not hypertensive prior to his renal cell cancer. See, e.g., July 2020 VA medical opinion. As such, the Board finds these opinions lacking in probative value. In summation, the Board finds the probative evidence of record supports the finding that the Veteran’s renal cell carcinoma is related to service. Thus, the third element for service connection is met and the Board grants service connection for renal cell carcinoma of the right kidney. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.