Citation Nr: 1110705 Decision Date: 03/17/11 Archive Date: 03/30/11 DOCKET NO. 06-39 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a kidney disability, including status post right nephrectomy due to kidney cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Mecone, Associate Counsel INTRODUCTION The Veteran had active military service from September 1965 through September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. By way of a November 2009 Board decision this claim was remanded for further development. The development has been completed and the case is once again properly before the Board. Initially, the Board notes that in August 2003, the Veteran filed a claim for service connection for calculi of the kidney and a disfiguring scar due to kidney removal. The RO characterized the Veteran's claim as a history of kidney stones, status-post right nephrectomy due to kidney cancer, and later described the issue on appeal as service connection for right nephrectomy due to kidney cancer. Accordingly, the Board has re-characterized the issue on the title page to service connection for a kidney disability, including right nephrectomy due to kidney cancer. FINDING OF FACT The Veteran does not have a kidney disability, to include residuals of renal cell carcinoma-status post right nephrectomy that are attributable to his active military service. CONCLUSION OF LAW The Veteran does not have a kidney disability, to include residuals of renal cell carcinoma-status post right nephrectomy that is the result of disease or injury incurred in or aggravated during active military service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which stated that VA would request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in November 2003, March 2006, March 2007, and November 2007. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2010). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in federal custody. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). In the present case, the RO has obtained the Veteran's service treatment records (STRs), service personnel records, VA and private medical records, and provided an examination in furtherance of his claim. A VA examination with respect to the issue on appeal was obtained in February 2010. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as the examination was predicated on a reading of the STRs and medical records in the Veteran's claims file, and considered all of the pertinent evidence of record, including the July 1967 Report of Medical History where a physician noted that the Veteran had a kidney infection while serving in Korea in 1966, and the Veteran's contentions regarding the onset of his renal cell carcinoma. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, no duty to assist was unmet. II. Law and Analysis The Veteran contends that the kidney infection he suffered from during military service was related to the kidney cancer (renal cell carcinoma) he developed approximately eleven or twelve years later. The Veteran believes that his cancer lay dormant for several years after discharge, and that the kidney infection was an early symptom of his later diagnosed kidney cancer. The Veteran also asserts that his kidney cancer, and subsequent right nephrectomy was the result of exposure to herbicides while stationed along the demilitarized zone in Korea in 1966. See December 2006 substantive appeal (VA Form 9). The Veteran's service treatment records (STRs) contain a July 1967 Report of Medical History where the Veteran noted that he experienced kidney stones or blood in his urine during military service, and the physician's summary and elaboration of all personal data that is contained on the reverse side of the Report of Medical History, noted that the Veteran had a kidney infection in Korea in 1966. A July 1967 separation physical examination reflected a normal clinical evaluation for the abdomen and viscera. The Veteran underwent a right nephrectomy in March 1979 due to renal cell carcinoma. Private treatment records noted that he experienced renal insufficiency related to nephrosclerosis due to having a single kidney secondary to his nephrectomy with history of renal cell carcinoma. See treatment records from the Trover Clinic and Regional Medical Center. In February 2010, the Veteran was afforded a VA examination. At this examination, the Veteran reported that he was serving in Korea in 1966 and developed right flank pain. Testing revealed an infection and he was treated with antibiotics and his symptoms resolved. The Veteran reported that he continued to have right flank pain over the years, but nothing serious until one day in 1978 when he had severe right lower quadrant pain, and underwent a right radical nephrectomy after imaging revealed a tumor. Pathology revealed renal cell carcinoma. The Veteran reported being told by his physicians that he suffers from mildly impaired renal function, but has never had further problems related to his history of right radical nephrectomy. He denied any history of ever passing kidney stones, and denied a history of gross hematuria. The Veteran also reported that at the time he was diagnosed with renal cell carcinoma, he had been a tobacco smoker for the previous ten years. The VA examiner, J.T., M.D., diagnosed the Veteran with renal cell carcinoma (status post right radical nephrectomy in 1979) with no current evidence of the disease, and near normal renal function. Dr. T. opined that the Veteran's kidney condition-renal cell carcinoma, resolved (status post nephrectomy) was not caused by or the result of his military service. The VA examiner explained that although the service treatment records reflect a possible kidney infection in 1966, the cause of renal cell carcinoma is unknown in the majority of cases except for rare familial genetic disorders that result in heritable RCC. However, Dr. T. stated that the major known risk factor that leads to an increased risk of developing renal cell carcinoma is smoking; and the Veteran had a history of tobacco abuse prior to his diagnosis of renal cell carcinoma. Dr. T. determined that after reviewing the Veteran's medical record, his history of smoking was the only known possible contributory factor for the development of renal cell carcinoma. Further, Dr. T. noted that there was no medically accepted known association of military service exposures that led to an increased risk of developing renal cancer. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including calculi of the kidney, cardiovascular-renal disease, nephritis or malignant tumors, to a degree of 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.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The law further provides that there are certain diseases that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.309(e). Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, VA added a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307 that reads as follows: (a)(6)(iv) A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 76 Fed. Reg. 4245-49 (January 25, 2011)(to be codified at 3.307(a)(6)(vi)). However, regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Initially, the Board observes that there is no evidence that the Veteran was diagnosed with calculi of the kidney within one year of discharge. Although in a July 1967 Report of Medical History filled out by the Veteran, he noted that he experienced kidney stones or blood in his urine, the record does not contain medical evidence diagnosing the Veteran with kidney stones during service or within a year of discharge. In fact, in July 2003, the Veteran reported that he began developing kidney stones in 1977, ten years after discharge. However, throughout the pendency of the appeal the record does not reflect a diagnosis of calculi of the kidney. Further, the Veteran was not diagnosed with renal cell carcinoma until 1979, more than ten years after his discharge from the military. Therefore, service connection is not warranted on a presumptive basis for calculi of the kidney or renal cell carcinoma. See 38 U.S.C.A §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). Service connection for the residuals of renal cell carcinoma is also not warranted on a presumptive basis for diseases associated with exposure to herbicides. Renal cell carcinoma is not one of the diseases listed under 3.309(e) as a disease having a positive association with herbicide exposure. Moreover, while the Veteran served in Korea, he did not serve in Korea during the time period specified in the regulation-between April 1, 1968, and August 31, 1971. The Veteran's service personnel records document that he was stationed in Korea prior to this time period-from February 18, 1966 to March 14, 1967. Therefore, regardless of whether the Veteran served near the DMZ while in Korea, he does not suffer from a disability associated with herbicide exposure, and the recognized use of herbicides took place after his service in Korea and his separation from military service. Consequently, the provisions of 38 C.F.R. §§ 3.307(a)(6)(iv) and 3.309 are not for application. As noted above, notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d at 1042. However, although the Veteran argues that he developed renal cell carcinoma after being exposed to herbicides while stationed along the DMZ in Korea, the Veteran has submitted no evidence, to include his own lay assertions, suggesting that he was in fact exposed to herbicides in service. Further, there is no objective evidence of record reflecting that the Veteran was exposed to herbicides during his active military service. According to the VA Adjudication Procedures Manual, VA recognizes that herbicides were used along the DMZ in Korea and exposure to herbicides will be conceded if a veteran was assigned to a specified unit. See VA Adjudication Procedures Manual (M21-1MR) part IV, subpt. ii, ch. 2, sec. C.10. In this case, the Veteran served with HH battery, 6th battalion, 12th Artillery division, which is not a unit identified by the Department of Defense (DOD) as having served in an area along the demilitarized zone in Korea. In addition, as discussed above, the Veteran did not serve in Korea during the time period when herbicides are known to have been applied- between April 1, 1968 and August 31, 1971. As such, because there is no evidence showing that the Veteran was in fact exposed to herbicides, the Board finds that his currently diagnosed residuals of renal cell carcinoma is not related to direct exposure to herbicides. In terms of establishing service connection directly related to the Veteran's active duty service, (other than as a result of herbicide exposure), the Board notes that the Veteran is currently diagnosed with renal cell carcinoma-resolved, status post nephrectomy. The only remaining residual is a large abdominal scar, and slightly below normal renal function. The Veteran has not been diagnosed with kidney stones during the pendency of the appeal; and in fact, at a February 2010 VA examination, the Veteran denied a history of ever passing kidney stones. The service treatment records (STR's) reveal a normal clinical examination at discharge in July 1967 for the Veteran's abdomen and viscera, and there are no medical records documenting complaints or treatment related to the kidneys between discharge in July 1967 up until March 1979, twelve years later when the Veteran underwent a right nephrectomy, after an x-ray of the kidneys revealed a 3 centimeter spherical mass arising from the right mid kidney which was determined to be cancerous. See Trover Medical Clinic x-ray and records dated in 1979. The Board acknowledges that in a July 1967 Report of Medical History, the Veteran reported having blood in his urine or kidney stones, and a physician reported that the Veteran had a kidney infection in Korea in 1966. However, a VA examination was obtained to determine if the in-service kidney infection was a precursor or symptom of the Veteran's later diagnosed renal cell carcinoma, and the February 2010 VA examiner, Dr. T., opined that the Veteran's kidney condition-renal cell carcinoma, resolved (status post nephrectomy) was not caused by or the result of his military service. The VA examiner considered the in-service notation of a kidney infection in 1966, but did not find a kidney infection to be a known risk factor for developing kidney cancer or a symptom of his later diagnosed kidney cancer. Instead, Dr. T. explained that although the cause of renal cell carcinoma is unknown in the majority of cases, the major known risk factor that leads to an increased risk of developing renal cell carcinoma is smoking. In this case, Dr. T. noted that the Veteran had a history of tobacco abuse prior to his diagnosis of renal cell carcinoma, and determined that after reviewing the Veteran's medical record, his history of smoking was the only known possible contributory factor for the development of renal cell carcinoma. Although the Veteran has not alleged that his in-service use of tobacco products contributed to the development of his kidney cancer, the Board notes in passing that for claims received by VA after June 9, 1998, which is the case here, a disability or death will not be considered service connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103 (2002); 38 C.F.R. § 3.300 (2010). Therefore, as a matter of law, service connection cannot be granted for kidney cancer attributable to the use of tobacco products in service. Finally, at his February 2010 VA examination, the Veteran reported experiencing right flank pain before his in-service diagnosis of a kidney infection, and occasional right flank pain through the years. Although the Veteran is competent to report flank pain as it is a symptom observable by a lay person, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), and the Board finds no reason to question the credibility of the Veteran's report of flank pain, the fact remains that the February 2010 VA examiner, Dr. T., took into account the Veteran's report of occasional right flank pain through the years, (which the Veteran reported for the first time at the examination by Dr. T.), but he still concluded that the Veteran's renal cell carcinoma was not traceable to his military service. The Veteran is not competent to state that his right flank pain and kidney infection in 1966 were precursors of his later diagnosed renal cell carcinoma because only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this case, as discussed above, a medical examiner concluded that the Veteran's renal cell carcinoma was not traceable to service, including to a kidney infection in 1966 or symptoms of right flank pain. The February 2010 VA examiner's opinion is uncontradicted by the record and supported by the medical evidence. In sum, absent competent and probative evidence of a relationship between the Veteran's residuals of renal cell carcinoma (status post right nephrectomy) and his military service, or exposure to herbicide agents during military service and the development of kidney cancer, the Veteran's claim for service connection for kidney cancer, as directly related to military service is not warranted. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The Veteran's residuals of renal cell carcinoma are not traceable to an injury or disease incurred in or aggravated during active military service. ORDER Service connection for a kidney disability, including status post right nephrectomy due to kidney cancer is denied. ____________________________________________ ROBERT SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs