Citation Nr: 22011981 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 10-18 475 DATE: March 2, 2022 ORDER Service connection for renal cancer with right nephrectomy, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The competent and probative evidence of record does not tend to show that the Veteran suffered from renal cancer during his active service, or that his current disability is related to his active service or to herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for renal cancer, with right nephrectomy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1964 to July 1988 with confirmed service in the Republic of Vietnam. This matter before the Board of Veterans' Appeals (Board) is on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter has previously been before the Board in December 2017, October 2019, October 2020, and April 2021. Entitlement to service connection for renal cancer with right nephrectomy, to include as due to exposure to herbicide agents Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty. 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases which are associated with herbicide exposure do not include renal cancer. 38 C.F.R. § 3.309 (e). The availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's assertion is that his renal cancer is associated with his presumed herbicide agent exposure. Initially, he was diagnosed with renal cancer in February 2009 as noted in a February 2009 VA treatment record and the first element of service connection, a current disorder, has been satisfied. The Veteran has verified service in the Republic of Vietnam and is therefore presumed exposed to herbicide agents. However, renal cancer is not on the list of presumptive diseases entitled to service connection due to herbicide agent exposure. 38 C.F.R. § 3.309(e). The Veteran has not submitted any objective medical evidence or medical treatises that would support, or even suggest, a correlation between the herbicide exposure and the later development of renal cancer. 38 U.S.C. § 5107(a). As such, the record fails to support presumptive service connection based on herbicide agent exposure. As to direct service connection, the service treatment records are silent for any diagnosis of, treatment for, or complaints of renal cancer. As noted above the Veteran was first assessed with renal cancer in 2009 which is more than 20 years after separation from service. Additionally, no medical evidence has shown or suggested an etiological connection between the Veteran's specific diagnosis of renal cancer and herbicide agent exposure in service. Specifically, an October 2021 VA kidney condition disability benefits questionnaire (DBQ) shows that after a review of the evidence of record to include medical literature, the examiner opined that it was less likely than not that the Veteran's renal cancer was caused by the herbicide agent exposure during active service or onset within one year after separation from active service. The examiner cited to medical literature and medical studies and determined that based on the epidemiologic evidence there was inadequate or insufficient evidence to determine whether there is an association between exposure to the herbicide agents and renal cancer. The Board finds that the October 2021 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, prior physical evaluation of the Veteran, and pursuant to the Board's prior remand instructions. Furthermore, the October 2021 VA examiner provided a complete and thorough rationale in support of their opinion, to include using medical literature to support the conclusion reached. See Prejean v. West, 13 Vet. App. 444, 448-449 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the Veteran's lay statements that renal cancer was caused by herbicide agent exposure during service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent, meaning medically qualified, to offer an opinion as to the etiology of his renal cancer due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's statements in this regard are not competent and lack weight. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, service connection is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin 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.