Citation Nr: A26027770 Decision Date: 03/26/26 Archive Date: 03/26/26 DOCKET NO. 251202-621807 DATE: March 26, 2026 ORDER Service connection for cause of the Veteran's death is granted. FINDINGS OF FACT 1. The death certificate shows that the Veteran died in July 2013 with the immediate cause of death listed as renal cell cancer. 2. The probative evidence shows that the Veteran's renal cell cancer was, as likely as not, caused by in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1116, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United State Army with active duty from June 1967 to February 1969. He died in July 2013. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2025 higher-level review rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction. In that rating decision, the AOJ continued to deny service connection for cause of the Veteran's death. On December 2, 2025, the Board received a timely VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), in which the appellant elected the Evidence Submission docket. The appellant submitted additional evidence with December 2025 NOD. Therefore, the Board may only consider the evidence of record at the time of the March 29, 2024 AOJ rating decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the appellant or her agent with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The appellant and her agent were not provided with a Board docketing letter with respect to this appeal in response to the timely receipt of the December 2025 NOD. Normally, after receipt of a VA Form 10182, the Board would send a docketing letter to explain what the appellant's choice of docket (i.e., evidence submission docket) entails; to describe the appellant's options to switch dockets, submit evidence, and withdraw the appeal, should she so desire; and to provide additional information regarding appellate processes. As this decision represents a full grant of the benefit sought by the appellant, the failure to issue the docketing letter is harmless error and the appellant is not prejudiced by the issuance of this decision at this time. Entitlement to service connection for cause of the Veteran's death. The appellant contends that the Veteran's kidney (renal) cancer, which is listed as the immediate cause of the Veteran's death, was caused by exposure to herbicide agents during his service in the Republic of Vietnam. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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). A claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding the appellant's claim that the Veteran's cause of death is a result of his exposure to herbicide agents to include Agent Orange, generally, the evidence must show the following in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that the Veteran served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; or that he served in any of the other locations where herbicide agents are presumed to have been applied during the designated time period; and, (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e). 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6), 3.309(e). The question before the Board is whether the Veteran's cause of death is at least as likely as not related to an in-service injury event, or disease to include exposure to herbicide agents (Agent Orange). The Board concludes that the most probative evidence shows that the cause of the Veteran's death is related to his herbicide exposure during active service. See 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. Turning to the issue of service connection for cause of the Veteran's death, the evidence shows that the Veteran died in July 2013. His death certificate lists his immediate cause of death as renal cell cancer. At the time of the Veteran's death in July 2013, the Veteran did not have any service-connected disabilities. An October 2023 rating decision provided the favorable finding that VA conceded the Veteran's exposure to herbicides based on service in Vietnam. In the absence of clear and unmistakable evidence to the contrary, the Board is bound by this favorable finding. See 38 C.F.R. § 3.104(c). The Veteran's service personnel records shows that the Veteran served in Vietnam from January 1968 through October 1968. Thus, the Veteran is presumed to have been exposed to herbicide agents to include Agent Orange during active service. Nonetheless, renal cell cancer is not among the statutorily enumerated diseases for which presumptive service connection is available for veterans exposed to herbicide agents during active service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309. Therefore, renal cell cancer is not entitled to the presumption of service connection due to exposure to herbicide agents to include Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides but must also determine whether his disability is otherwise the result of active naval service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude establishing, in the alternative, service connection by way of proof of actual direct causation. The Veteran's service treatment records show that he did not seek treatment for, have symptoms of, or receive a diagnosis related to kidney problems or kidney cancer during service. The first medical evidence documents that the Veteran first noted hematuria along with flank pain in March 2012, which he thought was due to a kidney stone. See July 2012 physician consultation letter. Due to worsening symptoms and urinary retention, he was admitted to the hospital in June 2012. The medical evidence shows that the Veteran was first diagnosed with renal cell carcinoma in June 2012, approximately 43 years after discharge from active service. See June 2012 private treatment record. With respect to whether the Veteran's renal cell carcinoma is related to herbicide exposure during active service on a direct basis, following the enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), Pub. L. No. 117-168, § 405, 136 Stat. 1759, 1785 (2002), effective August 10, 2022, VA sub-regulatory guidance was updated in June 2024. Relevantly, renal cell carcinoma is no longer present on the list of conditions determined to have no positive association with herbicide exposure. See VBA Letter 20-24-06 at 12-13, Updated Guidance on Processing Claims Involving Public Law 117-168 (June 12, 2024). Furthermore, the claims file contains a positive private medical opinion regarding whether the Veteran's renal cell carcinoma is caused by exposure to herbicide agents during active service. Specifically, in December 2025, Dr. Christopher King, a board-certified radiation oncologist, provided the medical opinion that in the absence of any personal risk factors and based on the medical and scientific evidence reviewed, the Veteran's cause of death from kidney cancer is at least as likely as not the result of his conceded herbicide exposures. He noted that he reviewed the Veteran's records in their entirety encompassing private and VA medical records, military service records, and communications with VA. Dr. King explained that kidney cancer is primarily an acquired cancer. He listed the following as known risk factors for kidney cancer: hypertension; smoking; obesity; type 2 diabetes; race; prolonged overuse of certain pain medicines; exposure to several carcinogens to include cadmium, arsenic, several herbicides, and organic solvents, such as trichloroethylene; family history, and rare genetic conditions. Dr. King explained that the Veteran did not have hypertension, obesity, type II diabetes, prolonged exposure to certain pain medications, a family history of kidney cancer, or rare genetic conditions. The Veteran's medical records confirm that the Veteran was never a smoker of cigarettes. However, he did enjoy an occasional cigar. While cigar smoking is known to increase cancer risk of the mouth, throat, larynx, and esophagus, it is not known to increase the risk of kidney cancer. African Americans have a higher rate of kidney cancer diagnosis and the Veteran is Caucasian. Dr. King stated that the Veteran's conceded herbicide exposures in Vietnam include Agent Orange with the herbicide 2,4,5-T plus Dioxin, and Agent Blue with Arsenic. All three of these (2,4,5-T, Dioxin, and Arsenic) are classified as human carcinogens and are linked with kidney cancer. He noted that the Veteran had no other exposure from civilian occupations. Dr. King cited to medical literature and studies from 2016, 2018, 2020, 2023, and 2024 in support of his conclusion that exposure to Agent Orange (dioxin, herbicide 2, 4, 5-T) and Agent Blue (arsenic) are linked with a higher risk of kidney cancer. Dr. King also explained that the latency of around 43 years following the Veteran's herbicide exposures in 1968-69 to the first manifestation of kidney cancer in 2012 is consistent with the 48-year average latency for kidney cancer after carcinogen exposure. The Board finds that the private medical opinion is probative as to the issue of whether the Veteran's cause of death from renal cell cancer is at least as likely as not caused by his exposure to herbicide agents during service. Specifically, Dr. King provided a thorough rationale for his medical opinion based on a review of the Veteran's claims file, the Veteran's post-service treatment records, and medical literature and/or studies. He also discussed the Veteran's specific medical and family history, as well as any other potential risk factors for developing kidney cancer. Furthermore, the Board finds it persuasive that there is no medical opinion of record to the contrary. (Continued on the next page) ? In conclusion, the December 2025 private medical opinion is probative regarding the issue of whether the Veteran's renal cell cancer was caused by exposure to herbicide agents during active service. Furthermore, as noted above, the Veteran's death certificate shows that renal cell cancer was listed as the immediate cause of his death. Accordingly, and with resolution of all reasonable doubt in favor of the appellant, service connection for cause of the Veteran's death is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.