This is a new case that the VBA acknowledged kidney cancer for Titan II Maintenance Veteran.
What I noticed about this case is that the physician letters did not quote the reason in their as least as likely as not statement. Guys and Gals you have to have the physician state they have read the medical literature on the Titan II fuel decomposition chemical and state the CDC document or NIOSH or research paper that there is a causal relationship between your illness and the chemical. they also have to state they have reviewed all your medical history.
At least in this case the VA physician was very understandable and read this websites documents and made the right conclusion at least for the kidney cancer and REMANDED the balance back to the VA physicians. But, of course, this is going to take more time for research by the VA. You have to give the VA all the research documents liking your illness to the chemicals up front, if you want timely decisions.
Here is the case documents;
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Citation Nr: A23014490
Decision Date: 06/28/23 Archive Date: 06/28/23
DOCKET NO. 230224-326156
DATE: June 28, 2023
ORDER
Service connection for kidney cancer, due to exposure to toxic chemicals and missile fuel is granted.
REMANDED
Entitlement to service connection for diabetes mellitus, type II (DM), due to exposure to toxic chemicals and missile fuel is remanded.
Entitlement to service connection for congestive heart failure (claimed as open heart bypasses), due to exposure to toxic chemicals and missile fuel is remanded.
FINDING OF FACT
The Veteran’s currently diagnosed kidney cancer (renal cell carcinoma of left kidney) is etiologically related to exposure to toxic chemicals and missile fuel during active service.
CONCLUSION OF LAW
The criteria for service connection for kidney cancer, due to exposure to toxic chemicals and missile fuel, have been met. 38 U.S.C. §5 1101, 1131(2012); 38 C.F.R. §5 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1966 to March 1970.
In a May 2022 rating decision, the Regional Office (RO) denied service connection for kidney cancer, congestive heart failure, and DM. In the February 2023 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Board cannot consider (1) evidence submitted during the period after the AO] issued the decision on appeal and before the VA Form 10182 was received, or (2) evidence submitted more than 90 days after the VA Form 10182 was received. 38 C.F.R. § 20.303.
SERVICE CONNECTION
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §5 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. 55 1101, 1112, 1113, 1137; 38 C.F.R. §5 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).
Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including cancer, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §5 1101, 1112, 1137; 38 C.F.R. §5 3.307, 3.309.
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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 another basis. See Combee v. Brown, 34 F.3d 1039, 1043 - 44 (Fed. Cir. 1994).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Service connection for kidney cancer, due to exposure to toxic chemicals and missile fuel
The Veteran contends that his currently diagnosed kidney cancer is related to exposure to toxic chemicals; diesel exhaust; diesel fuel; oil; and missile propellants/missile fuel, including aerozine-50, hydrazine, dimethylhydrazine, and nitrogen tetroxide in service, while working in the Titan II missile silo from 1966 -1970. See December 2020 correspondence from the Veteran, December 2020 Fully Developed Claim, and February 2023 statement in support of claim.
Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to kidney cancer during active duty or at discharge.
However, personnel records, including the Veteran’s DD-214, show he was assigned to the 381st missile maintenance squadron, and that his military occupational specialty (MOS) was missile pnedraulic repairman. As such, the Board finds that his reports of exposure to toxic chemicals and missile fuel during active duty are consistent with his duties as a missile repairman, and his exposure to toxic chemicals and missile fuel in service is conceded.
Post-service medical evidence shows the Veteran has been diagnosed with renal cell carcinoma of the left kidney. See private treatment records from North Valley Nephrology and UC Davis Health, and December 2020 VA Kidney Conditions Disability Benefits Questionnaire (DBQ).
The Veteran’s private physician, D.J.B., MD submitted an opinion in November 2020. He noted that the Veteran was diagnosed with kidney cancer in 2017 and had his left kidney removed. The doctor reported that he was at least 51% certain that the Veteran’s kidney cancer was caused by exposure to toxic chemicals while working at a Titan missile site from 1966 - 1970. The doctor did not indicate that he had reviewed the Veteran’s claim file, nor did he provide a rationale for his opinion. As such, the Board finds as a fact in this case that the November 2020 private opinion is lacking in probative value and is therefore, inadequate for evaluation purposes.
The Veteran submitted another opinion by private physician, Dr. D.J.B. in March 2023, within 90 days of his NOD. He noted that while serving in the U.S. Air Force, the Veteran was exposed to nitrogen dioxide while performing responsibilities related to his job of maintaining a nuclear missile silo. He noted further that the Veteran developed renal cancer while under his care and opined that it is at least 51% possible that the Veteran’s exposure to nitrogen dioxide contributed to the development of his renal cell cancer. Again, Dr. D.J.B. did not indicate that he had reviewed the Veteran’s claims file. As such, his finding that the Veteran was exposed to nitrogen dioxide in service is based on the Veteran’s reported history alone. Moreover, the private physician did not provide a rationale for this opinion. Accordingly, the Board finds as a fact in this case that the March 2023 private opinion, while relevant to the issue on appeal, is not probative, and is therefore, inadequate for evaluation purposes.
The Veteran was afforded a VA examination in December 2020. The examiner, who conducted a thorough review of the Veteran’s claims file, opined that the Veteran’s kidney cancer was at least as likely as not the result of working on the Titan II missile silo during service. The examiner noted that medical literature documents cases of kidney cancer and numerous other types of cancers after exposure to Titan II missile fuel chemicals. In an April 2021 addendum, the VA examiner noted that according to medical information on chemicals, the breakdown of the Titan II missile propellants includes Aerozine 50-50, which is made of 50% unsymmetrical dimethylhydrazine (UDMH), 50% hydrazine, and oxidizer-inhibited fuming nitric acid (IRFNA). He noted further that a US Air Force 392d Aerospace Medical Group document from 1962 reported that there are eight extra toxic chemicals.
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from the release of UDMH or Aerozine 50-50 into the atmosphere, caused by spilled fuel from refueling or leaky missiles, and the Veteran would have potentially been exposed to several toxic chemicals, including formaldehyde (HCHO), hydrogen cyanide (HCN) ammonia (NH3), dinitrogen tetroxide (N204), methylamine (CH3NH2), cyanic acid (CHNO), carbon dioxide (CO2), carbon monoxide (CO), and Nitrosodimethylamine (CH3) 2 NH. In a May 2021 addendum, the VA examiner noted that the Veteran was exposed to the toxic chemical, Aerozine 50-50, which is known to increase the risk of kidney cancer and has been implicated in numerous cases with veterans with similar exposures. He reiterated his opinion that the Veteran’s kidney cancer is related to his job maintaining the Titan II missile silo during active military service. There is no contrary medical opinion of record.
Based on the evidence noted above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for kidney cancer is warranted. 38 U.S.C. § 5107 (b) (2012).
REASONS FOR REMAND
1, Entitlement to service connection for DM, due to exposure to toxic chemicals and missile fuel, is remanded.
2. Entitlement to service connection for congestive heart failure, due to exposure to toxic chemicals and missile fuel, is remanded,
The Veteran also contends that his currently diagnosed DM and congestive heart failure are related to exposure to toxic chemicals; diesel exhaust; diesel fuel; oil; and missile propellants/missile fuel, including aerozine-5O, hydrazine, dimethylhydrazine, and nitrogen tetroxide in service, while working in the Titan II missile silo from 1966-1970.
Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to DM, congestive heart failure, or any other heart disorder during active duty or at discharge.
However, as noted above, the Board finds that his reports of exposure to toxic chemicals and missile fuel during active duty are consistent with his duties as a missile repairman, and his exposure to toxic chemicals and missile -fuel during active duty is conceded.
Post-service medical evidence shows the Veteran has been diagnosed with DM and congestive heart failure. See private treatment records from North Valley Nephrology and UC Davis Health.
There is no medical opinion of record addressing the Veteran’s claim that his currently diagnosed DM and congestive heart failure are related to exposure to toxic chemicals and missile fuel during service. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). The failure to obtain medical examinations and medical opinions in these matters constitute pre-decisional duty to assist errors. Therefore, the Board finds that a remand for VA examinations and medical opinions as to the etiology of any current DM and congestive heart failure is necessary. See 38 C.F.R. § 20.802.
The matters are REMANDED for the following action:
1. Forward the claims file and a copy of this REMAND to an appropriate clinician for a VA examination to determine the nature and etiology of any currently diagnosed DM. The examiner must be provided access to the electronic claims file and indicate review of the claims file in the examination report. All necessary testing should be completed.
The examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed DM originated while the Veteran was serving on active duty or, is otherwise related to a disease or injury in service, to include his reported exposure to toxic chemicals and missile fuel.
The examiner must consider and discuss the Veteran’s reports of exposure to toxic chemicals; diesel exhaust; diesel fuel; oil; and missile propellants/missile -fuel, including aerozine-50, hydrazine, dimethylhydrazine, and nitrogen tetroxide in service, while working in the Titan II missile silo from
1966-1970. The examiner is advised that the Veteran’s exposure to toxic chemicals and missile fuel during active duty is conceded.
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A complete rationale must be given for all opinions and conclusions reached, If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
2. Forward the claims file and a copy of this REMAND to an appropriate clinician for a VA examination to determine the nature and etiology of any currently diagnosed congestive heart failure. The examiner must be provided access to the electronic claims file and indicate review of the claims file in the examination report. All necessary testing should be completed.
The examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that that any currently diagnosed congestive heart failure originated while the Veteran was serving on active duty or, is otherwise related to a disease or injury in service, to include his reported exposure to toxic chemicals and missile fuel.
The examiner must consider and discuss the Veteran’s reports of exposure to toxic chemicals; diesel exhaust; diesel fuel; oil; and missile propellants/missile -fuel, including aerozine-50, hydrazine, dimethylhydrazine, and nitrogen tetroxide in service, while working in the Titan II missile silo from
1966-1970. The examiner is advised that the Veteran’s exposure to toxic chemicals and missile fuel during active duty is conceded.
A complete rationale must be given for all opinions and conclusions reached. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made,
PAULA B. McCARRON
Veterans Law Judge
Board of Veterans’ Appeals
Attorney for the Board Yankey, Fatima
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.
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