Citation Nr: 22013546 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-20 589 DATE: March 9, 2022 ORDER Entitlement to service connection for a kidney disability is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that a kidney disability began during active service, or is otherwise related to any event, injury, or disease during service. CONCLUSION OF LAW The criteria for service connection for a kidney disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1996 to February 1999 and August 2000 to December 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Entitlement to service connection for a kidney disability The Veteran contends that he is entitled to service connection for kidney cancer because the claimed disability is the result of exposure to ionizing radiation while in service. Specifically, the Veteran asserts that he was exposed to harmful toxins while serving in Operation Iraqi Freedom. Service connection may be established 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. To establish 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 (Fed. Cir. 2004). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of the service, that disease shall be presumed to have been incurred in service, even though there is no evidence of that disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (1997). First, there are certain diseases for which presumptive service connection may be granted if they are manifested in a veteran who participated in a radiation-risk activity. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309 (d). Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be established under 38 C.F.R. § 3.303(d) when it is established that a disease diagnosed after discharge was the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether the disability was otherwise the result of active service. The fact that the requirements of a presumptive regulation are not met does not preclude a claimant from establishing service connection by way of proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A radiation-exposed Veteran is one who, while serving on active duty or on active duty for training or inactive duty for training, participated in a radiation-risk activity. Radiation-risk activity includes onsite participation in a test involving the atmospheric detonation of a nuclear device by the United States or a foreign nation. 38 U.S.C. § 1112(c)(3)(B)(i); 38 C.F.R. § 3.309(d)(3). The occupation of Hiroshima, Japan or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). If a claimant does not qualify as a radiation-exposed Veteran under 38 C.F.R. § 3.309(d)(3) and/or does not have one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran has a radiogenic disease and claims exposure to ionizing radiation in service. Radiogenic disease means a disease that may be induced by ionizing radiation and includes: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Dose data will be requested from the Department of Defense in claims based on participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, a request must be made for any available records concerning the Veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation, DD Form 1141, if maintained, service medical records, and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). 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 any injury, event, or disease during service. The Veteran's service separation form shows that he served as an Infantryman and received the Army Commendation Medal, Army Achievement Medal, Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, NATO Medal, Combat Infantryman Badge, and Kosovo Campaign Medal. In February 2011, the Veteran had a nephrectomy. In an August 2011 private treatment letter, the Veteran presented with complaints of renal cancer on the left side that started approximately eight months prior to the visit. In a June 2013 statement, the Veteran asserted that the engine exhaust and carbon from a coax machine gun caused him to develop kidney cancer. The Veteran stated that he was exposed to harmful toxins every time he had to participate in training. Correspondence dated in November 2020 shows that the RO made a request for records in an attempt to verify the Veteran's exposure to ionizing radiation. The response indicated that all personnel and medical records were provided. June 2021 correspondence indicated that the United States Army Dosimetry Center researched the files for records of exposure to ionizing radiation and were unable to locate any records of the Veteran. July 2021 correspondence indicates that a request was made to determine if the Veteran was exposed to chemicals and or other toxic substances while serving in Iraq. The response noted that the Military Records Research Center does not research exposure to environmental toxins or substances other than those identified in the VA manual. The Board finds that the evidence of record has not shown the Veteran was exposed to ionizing radiation of any other environmental toxins while in service. In a January 2020 VA examination, the examiner noted a diagnosis of a status post left nephrectomy due to left kidney cancer. The examiner opined that it is unclear what causes kidney cancer, though risk factors such as smoking, family history, obesity, exposure to herbicides, and others have been identified. The Veteran did not readily mention any particular cause of kidney cancer during the examination. The Veteran only mentioned that he developed flank pain and hematuria in 2010 and that he had a left nephrectomy in 2011, which was considered to have removed the cancer. The examiner found that there was no immediately apparent military activity or exposure that could be identified as a possible cause of kidney cancer. The examiner stated that if vehicle and machine gun fumes were established causes for kidney cancer, then there would be more scientific evidence to establish that causality as exposures to vehicle and gun fumes are relatively common. The Board concludes that, while the Veteran has a diagnosis of status post left nephrectomy due to left kidney cancer, the evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The evidence of record does not show the asserted ionizing radiation exposure or exposure to environmental toxins. Beyond that, there is no indication that the left kidney cancer was due to service or any event, injury, disease, or exposure during service. The Board finds that the VA examiner opinion is the most persuasive evidence of record because the examiner examined the Veteran and reviewed the record, and because of the training of the examiner. While the Veteran has stated that the kidney cancer is related to service, the Veteran is not competent to provide such an etiology opinion as the evidence does not show that he has the necessary medical training to provide such an opinion. While the Veteran believes his status post left nephrectomy due to left kidney cancer is related to exposure to environmental toxins while in-service, to include machine gun toxins, the Board reiterates that the evidence of record persuasively weighs against findings that kidney cancer is related to service, or any injury, event, or disease during service. Accordingly, the Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. As the persuasive weight of the evidence is against the claim for service connection for a kidney disability, the claim must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.