Citation Nr: 1754132	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-09 113A	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


Entitlement to service connection for cause of the Veteran's death.  


Appellant represented by:	Disabled American Veterans


Appellant and an observer


J.R. Bryant


The Veteran had active duty in the United States Army from March 1968 to March 1970 and was awarded the Combat Infantryman Badge (CIB).  He died in November 2006.  The appellant is his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  The appellant testified at a videoconference Board hearing held in December 2016.  A transcript is of record.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


The appellant seeks service connection for cause of the Veteran's death.  She contends that her husband developed metastatic renal cell carcinoma as a result of his exposure to Agent Orange or other herbicides.  However, renal cancer is not one of the diseases that the National Academy of Science has found to be epidemiologically linked to herbicide exposure and so it not subject to presumptive service connection based on in-service herbicide exposure under 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). 

Still, the record does include a private medical opinion which suggests a relationship between the Veteran's renal cancer and his military service.  See correspondence from P.M. Patel M.D. at Arizona State Urological Institute dated May 20, 2014.  Unfortunately the opinion is limited in terms of its ultimate probative value as Dr. Patel provided only the barest of conclusions and did not explain what evidence supported the conclusions or reference any clinical data or other evidence as rationale as to why the Veteran's renal cancer was caused by his herbicide exposure.  

A more recent December 2016 medical opinion from M. Shtivelband, M.D. at Ironwood Cancer & Research Centers, PC also indicates the possibility of a causal relationship between Agent Orange and renal cell carcinoma.  The doctor acknowledged that direct scientific evidence was still very limited and not conclusive, but that a report presented by researchers at the Shreveport VAMC in Louisiana, based on review of multiple cases, indicated that there may be a connection between Agent Orange exposure and the development of kidney cancer.  Unfortunately, this private opinion is also not sufficient to grant the claim at this point as Dr. Shtivelband did not actually cite to any medical literature which showed a meaningful association between herbicides and kidney cancer or reference any clinical data or other evidence as rationale for the opinion.  

Moreover both medical opinions are considerably weakened by the fact that neither physician mentioned, or ruled out, the role, if any, that the Veteran's smoking history played in the development of renal cancer.  Private treatment records reflect that when renal cancer was found, the physician noted the Veteran's extensive smoking history of 1-2 packs of cigarettes per day for more than forty years and that the Veteran continued to smoke at the time of his diagnosis and presumably until his death.  See clinical records from Chandler Regional Hospital and Arizona State Urological Institute dated between August 2006 and September 2006.  So although herbicide exposure has been established, the Board is not free to disregard this evidence.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (VA has discretion to arrange for a medical examination or opinion when necessary to make an informed decision).

Finally, the Board notes that during her December 2016, hearing the appellant, for the first time, raised the issue of secondary service connection for cause of death.  She testified that the Veteran had problems with "calcium build up" from his service-connected "joint issue" and that as a result he subsequently developed the renal cancer that led to his death.  [The Board notes that during the Veteran's lifetime service connection was established for left sacroiliac strain.]  

In light of the foregoing, a medical opinion should be obtained addressing the etiology of the Veteran's renal cell carcinoma and determining whether it was at least as likely as not (50 percent or greater) that it was the result of his presumed herbicide exposure during his active service vs extensive smoking history.  In the alternative the clinician should also address whether left sacroiliac strain disability contributed substantially or materially to the Veteran's death.

Accordingly, the case is REMANDED for the following action:

1.  With any necessary authorizations from the appellant, obtain and associate with the claims file copies of all clinical records, both VA and non-VA, pertaining to treatment of the Veteran for left sacroiliac strain since his discharge from service.  

2.  Refer the claim file to an appropriate VA clinician for a medical opinion.  All findings should be reported in detail.  Following a review of the relevant evidence, the physician should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's renal cancer is causally related service, to include exposure to herbicide agents (Agent Orange) as opposed to his history of smoking.  The Veteran in this case served in Vietnam and is thus presumed to have been exposed to herbicides in service.  

In providing this opinion, the clinician should specifically address the Veteran's smoking history (the record shows that he smoked 1-2 packs per day for more than 40 years), and Drs. Patel and Shtivelband's opinions.  If the clinician agrees or disagrees with Dr. Patel's or Dr. Shtivelband's opinion, he/she should specify their reasoning for doing so.  

The clinician should be aware that the fact that renal cancer is not listed as disabilities subject to presumptive service connection is not dispositive evidence weighing against the claim.  As such, it should not be used as the sole basis in support of a negative nexus opinion.

In the alternative the clinician should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected left sacroiliac strain caused his death; contributed substantially or materially to his death; combined to cause his death; aided or lent assistance to the production of his death; OR rendered the Veteran materially less capable of resisting the effects of the renal cell carcinoma.  

The clinician must explain the underlying rationale for all opinions expressed, citing to supporting factual data and medical literature, as deemed indicated.  If he/she cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided.

3.  Then, readjudicate the claim on appeal.  If the decision is adverse to the appellant, issue a supplement statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2014).

Thomas H. O'Shay 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2014), only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (7).

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