Citation Nr: A24016959 Decision Date: 04/09/24 Archive Date: 04/09/24 DOCKET NO. 231213-401432 DATE: April 9, 2024 ORDER Service connection for a kidney disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January 1969 to November 1970, including service in Vietnam; herbicide exposure is presumed. 2. A kidney disorder, diagnosed in 2022 as renal cell cancer, status/post right kidney removal, was not shown in service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and renal cell cancer is not causally or etiologically related to service nor is it presumed to be related to herbicide exposure. CONCLUSION OF LAW A kidney disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2023). REASONS AND BASES FOR FINDINGS AND CONCLUSION This decision has been written under the guidelines of the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In September 2023, the agency of original jurisdiction (AOJ) denied the claim. In December 2023, the Veteran appealed to the Board via a Form 10182 and elected the Evidence Submission docket. Therefore, the Board will review the evidence of record at the time of the AOJ's September 2023 decision, in addition to evidence submitted with the Form 10182 or within 90 days following receipt of the Form 10182. Of note, no additional evidence has been received since the Form 10182. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. Service in the Republic of Vietnam includes veterans on ships that operated not more than 12 nautical miles from the coast of Vietnam and Cambodia. In 2019, Congress provided specific longitudes and latitudes that mark the boundary in the Blue Water Navy Vietnam Veterans Act, Pub. L. 116-23. 38 C.F.R. § 3.307(a)(6). In this case, herbicide exposure has been presumed. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's asserts that kidney cancer and the subsequent right kidney removal is due to herbicide exposure during service. As to a current disorder, he underwent the surgical removal of the right kidney in August 2022 after an incidental finding during a hospitalization for unrelated treatment. While kidney function is currently normal, there is residual scarring. Thus, a current disorder is found. As to direct service connection, the service treatment records (STRs) do not show complaints of, treatment for, or a diagnosis related to the kidney or any symptoms reasonably attributed to a kidney disorder such as pain or difficulty with urination. At the time of service separation, the clinical evaluation of all systems, including the genitourinary system, was normal. Therefore, the medical evidence does not support direct service connection nor does the Veteran contend that renal cancer started in service. As to presumptive service connection under 38 C.F.R. §§ 3.307/3.309(a) due to a malignant tumor, no chronic disease or injury was shown in service. While the Veteran was treated for a lump above the right eye, a head and chest cold, pain in the arm, an acne cyst, sore throat, and received penicillin for high white cells in the urine, there was no indication of chronic kidney complaints. Also significant is the lack of kidney complaints at the time of service separation. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran was discharged from service in November 1970 and was not treated for kidney cancer until 2022. Based on the medical history provided by the Veteran, he was hospitalized for another medical matter and kidney cancer was found incidentally. He did not indicate that he had experienced any symptoms associated with kidney cancer prior to the diagnosis. As he was discharged in 1970 and symptoms were not identified until 2022 at the earliest, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1970 but did not receive treatment until 2022 as no symptoms were identified prior to that time. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, the medical evidence does not support presumptive service connection on any basis. As to presumptive service connection under 38 C.F.R. §§ 3.307/3.309(e) based on herbicide exposure, kidney/renal cancer is not listed as one of the presumptive disorders entitled to service connection under this section. Of note, the Veteran is already service connected for heart disease and prostate cancer which are on the list of presumptive disorders. While kidney cancer is listed as one of the presumptive diseases associated with exposure to contamination water at Camp LeJeune during a certain time period, the evidence does not show that this provision is applicable to the Veteran. Thus, the medical evidence does not support presumptive service connection based on herbicide exposure. As to service connection based on nexus or direct causation, the medical evidence does not support the appeal. To this end, the Veteran underwent a VA examination in January 2023. The examiner diagnosed renal cell cancer and noted the removal of the Veteran's right kidney in August 2022 and the resulting surgical scar. The examiner found that the Veteran's right kidney cancer was less likely than not incurred in or caused by exposure to toxic substances in service. The examiner reasoned: The Toxic Exposure Risk Activity (TERA) Memorandum dated 01/9/2023 was reviewed. There is no evidence of additional exposures documented on the ILER. The claimed right kidney carcinoma was less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the [V]eteran and the synergistic, combined effect of all toxic exposure risk activities of the [V]eteran. The TERA memorandum confirms the exposure to Herbicide Agent - 2,3,7,8 - Tetrachlorodibenzodioxin (TCDD) with eligible offshore service confirmed. The [V]eteran served on the USS St Paul from [redated] with an occupation as a point gunner and quarter master. The [V]eteran was diagnosed with right kidney carcinoma in 8/2022 which was found incidentally when he was in the hospital after a choking episode. According to the medial records he underwent a hand- assisted right nephrectomy on 8/19/2022. The pathology report confirmed papillary renal cell carcinoma Type 1. While the exact cause of Papillary renal cell carcinoma is unknown, in addition to male sex, older age, black or African American race, and family history/genetic susceptibility, established risk factors include smoking, older age, hypertension and obesity. The [V]eteran was diagnosed with this cancer at age 74, has a history of hypertension and a current BMI of 29.01. Agent orange and TCDD have been linked to certain types of cancer including; Bladder cancer, Chronic B-cell leukemia, Hodgkin's disease, Multiple myeloma, Non-Hodgkin's lymphoma, Prostate cancer, Respiratory cancers (including lung cancer) and Some soft tissue sarcomas. There is no dispute that agent orange has been shown to be a carcinogenic agent in a number of other cancers in humans there has not been any clear documentation or research that exposure to Agent Orange is a direct cause of renal cell carcinoma. Some newer studies have found evidence of associations with RCC with four herbicides (2,4,5-T, atrazine, cyanazine, and paraquat) and two insecticides (chlorpyrifos and chlordane) however, in review of medical literature there is currently no evidence of TCDD exposure as the causative agent for papillary cell renal carcinoma. Considering the diagnosis of papillary renal cell carcinoma over 50 years after exposure to agent orange, additional risk factors including older age, male sex, BMI 29.01, history of HTN and lack of evidence confirming a link between TCDD exposure and renal cancer it is less likely than not (likelihood is less than approximately balanced or nearly equal) that is papillary renal cell carcinoma is caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the [V]eteran and the synergistic, combined effect of all toxic exposure risk activities of the [V]eteran. A nexus has not been established. Andreotti G, Beane Freeman LE, Shearer JJ, Lerro CC, Koutros S, Parks CG, Blair A, Lynch CF, Lubin JH, Sandler DP, Hofmann JN. Occupational Pesticide Use and Risk of Renal Cell Carcinoma in the Agricultural Health Study. Environ Health Perspect. 2020 Jun;128(6):67011. doi: 10.1289/EHP6334. Epub 2020 Jun 12. PMID: 32692250; PMCID: PMC7292387. The Veteran was afforded a second VA medical opinion in September 2023. After a review of the file, the examiner found that the Veteran's right kidney cancer was less likely than not incurred in or caused by exposure to toxic substances in service, including his possible exposure to asbestos. In support of the conclusion, the examiner opined: Veteran was diagnosed with right kidney cancer in 8/2022 with removal of the right kidney on 8/19/2022 at [redacted] by Dr. [redacted]. Post military medical records indicated the [V]eteran is caucasian male, with history of hypertension and overweight with recent bmi noted to be up to 29. Cancers of the kidney (ICD-9 189) and renal pelvis (ICD-9 189.1) are often grouped in epidemiologic studies; cancer of the ureter (ICD-9 189.2) is sometimes also included. Although diseases of those organs have different characteristics and could have different risk factors, there is some logic to grouping them: the structures are all exposed to filterable chemicals, such as PAHs, that appear in urine. ACS estimated that 35,370 men and 22,870 women would receive diagnoses of renal cancer (ICD-9 189, 189.1) in the United States in 2010 and that 8,210 men and 4,830 women would die from it (Jemal et al., 2010). Those figures represent 2-4% of all new cancer diagnoses and cancer deaths. The average annual incidence of renal cancer is shown in Table 7-33. Renal cancer is twice as common in men as in women. In the age groups that include most Vietnam veterans, black men have a higher incidence than white men. With the exception of Wilms tumor, which is more likely to occur in children, renal cancer is more common in people over 50 years old. Tobacco use is a well-established risk factor for renal cancer. People who have some rare syndromes-notably, von Hippel-Lindau syndrome and tuberous sclerosis-are at higher risk. Other potential risk factors include obesity, heavy acetaminophen use, kidney stones, and occupational exposure to asbestos, cadmium, and organic solvents. According to Uptodate article: Epidemiology, pathology, and pathogenesis of renal cell carcinoma states that risk factors for renal cell cancer include male sex, age over 50, race (asian race lowest risk, then caucasian, followed by African American conferring higher risk), smoking history, hypertension, obesity, history of acquired cystic disease of kidney, sickle cell disease, chronic hepatitis C infection, history of kidney stone, cytotoxic chemotherapy, Based on a review of over 20+ studies (see table 724 pg 432 for full list This PDF is available at http://nap.nationalacademies.org/13166) The Veterans and Agent Orange: Update 2010 (2012) concludes: "The committee responsible for VAO concluded that there was inadequate or insufficient information to determine whether there is an association between exposure to the chemicals of interest and renal cancer. Additional information available to the committees responsible for Update 1996, Update 1998, Update 2000, Update 2002, Update 2004, Update 2006, and Update 2008 did not change that conclusion. On the basis of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the chemicals of interest and renal cancer. After a review of the complete medical evidence A committee reviewing over 20+ articles concluded that there is insufficient evidence to conclude there is an association between agent orange and renal cell. A review finds that here is no medical or scientific evidence available that provides any indication of a causal relationship between the development of agent orange and renal cell cancer. In one international multicenter study of over 1700 patients with RCCs and 2300 controls (mandel et al) showed an increased risk of cancer was observed in those exposed to asbestos (RR 1.4, 95% CI 1.1-1.8). cadmium (RR 2.0, 95% CI 1.0-3.9), and gasoline (RR 1.6, 95% CI 1.2-2.0). Cadmium workers who smoke may have a particularly high incidence of RCC. Studies of occupational exposures are often limited by the lack of specific exposure details A review of common risk factors for renal cell cancer status post right kidney removal condition shows that the [V]eteran has male sex, non asian race, overweight, advanced age, and hypertension as common risk factors for the development of the condition. This condition started in 2022. There is a delay of 52 years from exposure to the onset of illness, which makes causation less likely. The literature does not support causation of agent orange and renal cell cancer. There is slight possible increased incidence of renal cell cancer in people with asbestos expsoure [sic] however the [V]eteran has many other more significant known risk factors that are more likely contributing than the over 50 year expsoure [sic] history of possible asbestos exposure. The [V]eteran was only in service for one year so there was also a very short duration of possible exposure as well. Due to the length of time from exposure compared to the onset of illness, diagnosis of other common risk factors of this condition it is less likely that this condition was caused by environment hazards and toxic exposures as mentioned in the TERA Memo. A reasonable reading of the medical opinions is that there is no medical nexus between herbicide exposure and renal cancer nor is service connection warranted on a direct causation basis. The Board finds that the examination and medical opinions were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, considered the Veteran's lay statements, and he underwent a physical examination in January 2023. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Moreover, the examiners have the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion, including a review of medical literature. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiners' opinions to be of great probative value. The Veteran has not submitted any evidence, beyond his own statements, supporting his assertion that renal cell cancer with kidney removal and surgical scar is due to service, to include exposure to herbicides. VA obtained medical opinions in an effort to support the Veteran in establishing his claim. The Board finds the greatest probative value in the January 2023 and September 2023 VA examiners' opinions that there is no nexus or direct causation between renal cancer and service, including herbicide exposure. The Board has considered the Veteran's lay statements that a kidney disorder was caused by service. While he is competent to report symptoms as this requires only personal knowledge as it comes to him through his senses, he is not competent to offer an opinion as to the etiology of the current disorder due to the medical complexity of the matter involved. Such competent evidence concerning the nature and extent of the Veteran's kidney disorder has been provided by the medical personnel who examined him during the current appeal, and who rendered pertinent opinions in conjunction with the evaluations. Their findings (as provided in the examination report and other medical evidence) directly address the criteria under which this disorder is evaluated. The VA medical professionals explained their reasoning based on an accurate characterization of the evidence. Therefore, the Board attaches greater probative weight to the examination report and medical findings than to his lay statements regarding etiology. In sum, after a careful review of the record, the evidence weighs persuasively against the claim for service connection and there is no doubt to be resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buntin, M.E. 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.