BVA9501023 DOCKET NO. 89-02 142 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. Entitlement to service connection for post-operative status of right renal cell carcinoma, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for postoperative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from October 1962 until October 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 1987, from the San Francisco, California regional office (RO) which denied service connection for post-operative status of right renal cell carcinoma; and denied service connection for postoperative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in not granting service connection for post-operative status of right renal cell carcinoma; and for postoperative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. He contends that exposure to dioxin in service was not considered with regard to his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against service connection for post-operative status of right renal cell carcinoma; and for postoperative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. In December 1970, the veteran had a pyeloplasty of the left kidney for a congenital defect. 3. The pyeloplasty was ameliorative in nature, and the veteran's condition improved. 4. In June 1986, many years after service, the veteran had a resection of the right kidney for renal cell carcinoma. 5. Renal cell carcinoma of the right kidney was not present during service or within one year of discharge from service. 6. The veteran had active service in Vietnam during the Vietnam era. 7. Renal cell carcinoma is not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. CONCLUSIONS OF LAW 1. Service connection is not warranted for postoperative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § § 3.301, 3.303(b), 3.306(b)(1) (1994). 2. Right renal cell carcinoma was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C.A. § § 1110, 1112 (West 1991); 38 C.F.R. §§ 3.301, 3.303, 3.307(a), 3.309(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, he has not indicated that any probative evidence not already associated with the claims folder is available; therefore the duty to assist him has been satisfied. Id. The veteran filed a claim received in July 1986 for "left ureter/kidney disease/operation" and for "benign tumor of right kidney." By a rating action in January 1987, the RO denied service connection for postoperative status of right renal cell carcinoma, and denied service connection for postoperative status of left ureteropelvic junction obstruction; chronic pyelonephritis. The veteran filed a notice of disagreement and was issued a statement of the case. With regard to the bilateral kidney claim, the statement of the case stated only that service connection was not established for left kidney disease. In the veteran's substantive appeal, he stated that consideration had not been given to claimed exposure to dioxin and his "bilateral kidney dysfunction." The Board of Veterans Appeals (Board) remanded the case in June 1989 for consideration of service connection for a kidney disorder under new regulations pertaining to "Dioxin" claims in accordance with the instructions from the court in Nehmer v. U.S. Veterans' Administration, 712 F.Supp. 1404 (N.D. Cal. 1989). New regulations have been adopted and the RO reviewed the pending claim. A rating action dated in March 1994 denied service connection for right partial nephrectomy for renal cell carcinoma claimed as being due to Agent Orange exposure. A. Post-operative status of right renal cell carcinoma, claimed as due to Agent Orange exposure Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service and not the result of the veteran's own willful misconduct. 38 C.F.R. §§ 3.301, 3.303(b) (1994). The veteran was afforded a Department of Veterans Affairs (VA) medical examination in October 1986. The medical history indicated that in June 1986 he had a resection of the upper pole of the right kidney for Stage 1 renal cell carcinoma. The veteran's service medical records do not indicate that renal cell cancer of the right kidney, or symptoms thereof, were present during service, or during the year following discharge from service. These records do not show any complaints of, or treatment for, right kidney disease. The first evidence of right kidney disease is in 1986, many years after service. In the absence of evidence relating the right renal cell cancer to service, there is no direct basis for the granting of service connection; and, as there is no evidence that the disorder became manifest to a degree of 10 percent or more within one year from discharge from service, there is no basis for an allowance under the presumptive provisions of 38 U.S.C.A. § 1112 (West 1991). As previously stated, after the veteran was notified of the denial by the RO, he contended that the claim should include exposure to Agent Orange. The veteran's active duty included service in Vietnam during the Vietnam era. The new regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans with certain enumerated diseases who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1994). Consequently, it is presumed that the veteran was exposed to Agent Orange or other herbicide agents while in Vietnam. The new regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. § 3.309(e) (1994). The specified diseases are chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, soft-tissue sarcoma, multiple myeloma, and respiratory cancers. Id. Further, the Secretary of Veterans Affairs formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions, to specifically include renal cancer, or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341, 343 (1994). In the absence of evidence of direct incurrence of renal cancer, the absence of evidence of the disease to a degree of 10 percent or more within a year of discharge from service, and the absence of the VA's recognition of the disease being due to exposure to Agent Orange, there is no basis by which the veteran's claim can be allowed. B. Post-operative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. The veteran seeks service connection for "left ureter/kidney disease/operation." By a rating action in January 1987, the RO denied service connection for postoperative status of left ureteropelvic junction obstruction, to include chronic pyelonephritis. Service medical records show that in service in December 1970 the veteran had elective pyeloplasty surgery of the left kidney for a disorder described as "Left ueteropelvic junction obstruction, probably congenital." The course in the hospital was described as uneventful with "The patient tolerat[ing] the procedure well and ha[ving] a completely uneventful postoperative course." The service medical records from the date of the operation to the date of discharge are devoid of complaints, symptoms, treatment, or findings related to the veteran's kidneys. The first post-service mention of kidney disease was in 1986 when the veteran filed this claim for service connection. 38 C.F.R. § 3.303(a) (1994) reads "Service connection connotes many factors but basically it means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein." Emphasis supplied. 38 C.F.R. § 3.306(b)(1) (1994) reads "The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service." There is no evidence in the file which suggests that the operation in 1970 resulted in a disability; in fact, the contrary is true: a disability was ameliorated. Before the operation, the veteran had a kidney obstruction which resulted in pain and discomfort. After the operation, judging by the available record, there was no obstruction, no pain, no discomfort. As may be seen by reading the regulations quoted on the previous page, there is thus no basis for granting service connection for the residuals of the inservice operation. As for the contention that the operation resulted, many years later, in chronic pyelonephritis, the only evidence supporting such a contention is the statement by the VA examiner in 1986 who, after finding changes on a renal CT scan suggestive of chronic pyelonephritis, opined that the disorder "might possibly be also secondary to the surgery on the left kidney in 1970." Aside from the fact that a firm diagnosis of chronic pyelonephritis was not made, only a "suggestion" thereof, the examiner's opinion that such a condition (if extant), "might possibly" be secondary to the surgery in 1970 is too equivocal to be of any probative value. Cf. Tirpak v. Derwinski, 2 Vet.App. 609 (1992) ("May or may not" insufficient for well grounded claim.). The evidence of record is predominately against the veteran's claim ORDER Service connection for postoperative status of right renal cell carcinoma, claimed as due to Agent Orange exposure is denied. Service connection for postoperative status of left ureteropelvic junction obstruction to include chronic pyelonephritis is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.