Citation Nr: 1233986 Decision Date: 09/28/12 Archive Date: 10/09/12 DOCKET NO. 10-32 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for renal cell carcinoma, claimed as kidney cancer, and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the RO did not reopen the Veteran's claim of entitlement to service connection for renal cell carcinoma in the November 2008 rating decision or the June 2010 statement of the case, and therefore did not reach the merits of such claim. Prior to consideration of the Veteran's claim on the merits, the Board is required to consider the issue of finality, and as such, the issue has been characterized as shown on the first page of this decision. See 38 U.S.C.A. §§ 7104(b), 5108; see also Barnett v. Brown, 8 Vet. App. 1 (1995). Insofar as the Board's determination as to finality is favorable to the Veteran, he is not prejudiced by the Board's actions herein. See Barnett, supra at 4; Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). As discussed in further detail below, the Board is reopening the claim for service connection because new and material evidence has been received; however, as further development is needed prior to adjudication, the merits of the issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. A rating decision issued in January 2003 denied the Veteran's claim for service connection for renal cell carcinoma. The Veteran was notified in writing of the RO's determination and his appellate rights and did not perfect an appeal. 2. The evidence added to the record since the final January 2003 denial is neither cumulative nor redundant of the evidence of record at the time of the decision. This new evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim for service connection of renal cell carcinoma, and therefore raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The January 2003 RO rating decision that denied service connection renal cell carcinoma is final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2002) [(2011)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for renal cell carcinoma. 38 U.S.C.A. §§ 1110, 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for renal cell carcinoma is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of such claim is deferred pending additional development consistent with the VCAA. A review of the record reveals that the Veteran's claim of entitlement to service connection for renal cell carcinoma was initially denied in a January 2003 rating decision. At the time of such decision, the RO considered the Veteran's service treatment records (STRs), VA treatment records dated August 2001 to July 2002, and the private treatment records of Lake Gaston Medical Center, Dr. R., and Dr. M.. While the RO determined that the Veteran did have renal cell carcinoma, service connection was not warranted for the disease, as there was no record of its treatment or diagnosis during military service; nor was there evidence to link the disease to military service. The Veteran was notified in writing of the RO's determination and his appellate rights and did not perfect an appeal. First, with regard to the issue of finality, the Board notes that rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). In this case, the Veteran did not appeal the January 2003 rating decision that initially denied his renal cell carcinoma claim and thus, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2011)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for renal cell carcinoma was received prior to the expiration of the appeal period stemming from the January 2003 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Next, the Board observes that where, as here, a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). Moreover, where, as here, the prior final decision was an unappealed RO rating decision, the United States Court of Appeals for the Federal Circuit has held that "the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. In making this determination, the Board must review all of the evidence submitted since the last final rating decision. Under the provisions of 38 C.F.R. § 3.156(a) currently in effect, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. The prior evidence considered in the final January 2003 denial consisted of: the Veteran's STRs, VA treatment records dated August 2001 to July 2002, and the private treatment records of Lake Gaston Medical Center, Dr. R., and Dr. M. The bases of the final denial were that (1) there was no record of treatment or diagnosis of renal cell carcinoma during military service, and (2) there was no evidence to link the Veteran's renal cell carcinoma to military service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. Since the January 2003 rating decision, new evidence added to the record consists of: VA treatment records dated September 2004 to March 2008, the Veteran's lay statements, and treatise evidence in the form of an article from the National Cancer Institute. Such evidence is new in that it was not previously of record at the time of the prior final denial. Additionally, as will be explained in detail below, the Board finds that it is material because it relates to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that the new evidence tends to prove a previously unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for renal cell carcinoma. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. In particular, the new evidence addresses the unestablished fact of whether the Veteran's renal cell carcinoma is linked to his military service. The Veteran submitted lay statements in May 2008 and with his VA Form 9 and notice of disagreement. In his request to reopen his claim for service connection, the Veteran asserted that his kidney cancer was "due to exposure to chemicals and contaminants while serving for four years on the aircraft carrier USS Essex during the reclamation process in the 60s." He elaborated that as an E-1 seaman he chipped paint, painted, and performed general maintenance, and in the course of these assignments was exposed to diesel fuel fumes, secondhand smoke, asbestos, and lead paint. The Veteran's newly submitted statements and lay testimony are presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent). The Veteran also submitted treatise evidence in the form of an article from the National Cancer Institute. The article discusses the unknown etiology of kidney cancer and lists risk factors that include smoking and occupational exposure to chemicals or substances such as asbestos. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). In this regard, the Board notes that treatise evidence must "not simply provide speculative generic statements not relevant to the Veteran's claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition). In this case, the Board finds that the submitted article discusses generic relationships with a degree of certainty such that, under the facts of this case (the Veteran has asserted that he was exposed to asbestos and a great deal of secondhand smoke in service) there is at least plausible causality based upon objective facts. While the article is not specific to the facts of the Veteran's case, it is relevant to those facts, and, when taken together with the lay evidence and the Veteran's diagnosis of renal cell carcinoma, it addresses the unestablished fact of a link between the Veteran's renal cell carcinoma and his military service. 38 C.F.R. § 3.156(a). While the Board finds the treatise and lay evidence to be material, it notes that the new VA treatment records do not reflect treatment of the Veteran's renal cell carcinoma, nor do they discuss its etiology. The treatment records do not discuss in-service incurrence or aggravation of the disease; they merely report the Veteran's medical history of the carcinoma, and reflect that there is no evidence of recurrent tumor. This evidence is cumulative with the evidence considered in the prior denial, which acknowledged that the Veteran has had renal cell carcinoma. Moreover, the existence of a present disability is not an unestablished fact necessary to substantiate the underlying claim. Accordingly, the new VA treatment records do not relate to or tend to prove an unestablished fact necessary to substantiate the claim and are not material. However, this finding is moot with respect to the issue of whether to reopen the claim; as the Board has found other new evidence to be new and material. In summary, the lay statements and treatise evidence submitted since the January 2003 rating decision tend to establish a link between the Veteran's renal cell carcinoma and his military service. Therefore, the newly received evidence relates to an unestablished fact necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating such claim. Further, as discussed in the Remand section, the Board finds that this new evidence, when considered with the old evidence, triggers the Secretary's duty to assist by providing a medical opinion. Accordingly, the new evidence also raises a reasonable possibility of substantiating such claim under Shade, supra. Based on the foregoing, the Board finds that evidence received subsequent to the January 2003 rating decision is new and material and, as such, the Veteran's claim of entitlement to service connection for renal cell carcinoma is reopened for a de novo review on the merits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the claim of entitlement to service connection for a renal cell carcinoma, claimed as kidney cancer, is reopened and, to that extent only, the appeal is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he was exposed to asbestos, cigarette smoke, and other chemicals during service and that as a result of this exposure he developed an asbestos-related cancer; specifically, renal cell carcinoma. The Veteran states, and his personnel records confirm, that he was stationed aboard the aircraft carrier USS Essex for several years. He asserts that he was exposed to asbestos and other chemicals, including lead paint and diesel fumes, as a result of his in-service assignments chipping paint, painting, and general maintenance while the Essex was at Brooklyn Navy Shipyard for overhaul and updating. He further asserts exposure to heavy secondhand smoke onboard the ship and later on land when he worked for two years in a file room with poor ventilation. The Veteran also reports that he was treated during service for stomach and urinary issues, to include spitting up blood. Therefore, he alleges that such in-service exposures and symptoms resulted in his renal cell carcinoma. In cases involving a claim of entitlement based on exposure to asbestos during military service as the cause of current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). While there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations, VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos in VA ADJUDICATION PROCEDURE MANUAL, M21-1, Part VI, 7.68 (Sept. 21, 1992) [formerly DVB Circular 21-88-8, Asbestos-Related Disease (May 11, 1988)]. In December 2005, the M21-1 was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1. See M21-1MR, Part IV, subpart ii, Chapter 2, Section C.9. The M21-1MR acknowledges that inhalation of asbestos fibers can produce cancers of the urogenital system, except the prostate, and that urogenital cancer develops in 10 percent of persons with asbestosis. The Board notes that kidney cancer is considered a cancer of the urogenital system. The manual further acknowledges that the latency period ranges from 10 to 45 or more years between the first asbestos exposure and the development of disease. Further, disease-causing exposure to asbestos may be brief (as little as a month or two), and/or indirect. See M21-1MR, Part IV, subpart ii, Chapter 2, Section C.9. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. In this case, the November 2008 rating decision on appeal states that the Veteran's "military personnel file [does] not confirm a military occupation with evidence confirming known exposure to chemicals to include asbestos." The rating decision also states that the Veteran's VA treatment records indicate he was an electrician by trade after service, and that this is an occupation with known chemical exposures to include asbestos. Similarly, the June 2010 statement of the case indicated that the Veteran's ratings in the Navy were airman apprentice, seaman, and yeoman, "all of which are accepted as having had minimal probability of having been exposed to asbestos." Neither the rating decision nor the statement of the case identifies or discusses the Veteran's actual military duties. Review of the Veteran's service personnel records indicate that he was on the USS Essex from December 1961 to June 1964, and was an airman apprentice, seaman, and yeoman. The only evidence in the record suggesting that the Veteran was an electrician is a June 2002 note that his son works with the Veteran in a "self-owned electric company" and subsequent mention of the Veteran installing light fixtures. It is unclear from the record who owns the company, and there is no indication of how long the Veteran may or may not have worked as an electrician. The M21-1MR states that work in shipyards is one of the major occupations involving exposure to asbestos. See M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9. The Veteran's lay evidence shows that he performed maintenance on the USS Essex while it was in a shipyard twice; each time for a period of six-months. Therefore, based on lay statements, the Veteran spent a cumulative year working in a shipyard. The rating decision does not reconcile its asbestos exposure finding with the Veteran's significant time spent working in a shipyard. Nor does it discuss the M21-1MR's guidance regarding shipyards and the ability of disease to result from brief and/or indirect exposure to asbestos. In this regard, it also fails to discuss the actual duties performed by the Veteran. Consequently, and contrary to the guidelines, the RO's determination regarding the relationship between asbestos exposure and the claimed kidney cancer does not appear to have kept in mind the latency or exposure information found in the M21-1MR. The Veteran's personnel file does not appear to provide details regarding his duties while he was assigned to the USS Essex. His Form DD-214 does show that at the time of separation he was a yeoman with a related civilian occupational number of 209.588, which is a clerical position. However, this appears to apply only to his later years of service. Due to the significance of his actual duties in the determination of exposure to asbestos, on remand further information should be obtained, if possible, about his military duties and the likelihood of exposure from any appropriate agency. Further, the Veteran has not been afforded a VA examination in order to determine whether his renal cell cancer is linked to his military service. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (the regulations at 38 C.F.R. § 3.159(c)(4) present a low threshold for the requirement that evidence indicate that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). In this case, the Board finds that the lay and treatise evidence, taken together with the Veteran's service in a shipyard and aboard a Naval vessel, is sufficient to satisfy the threshold for the requirement that the renal cell carcinoma may be associated with in-service exposure to asbestos and other chemicals. Therefore, the Veteran should be afforded a VA examination so as to obtain an opinion as to whether it is at least as likely as not that his renal cell carcinoma is related to his military service, to include as a result of exposure to asbestos, cigarette smoke, lead paint, and diesel fuel fumes, or his treatment for spitting up blood in June 1965 as documented in his STRs. Finally, the Veteran stated in his November 2009 notice of disagreement that he was being evaluated by VA physicians for worsening health, and that he intended to forward those treatment records. No such records were submitted and the most recent VA treatment records in the claims file are dated March 2008. Additionally, in connection with his claim, the Veteran has identified various private physicians who treated him over the years, to include on October 2002 and May 2008 VA 21-4142 forms; however, it does not appear that the RO has attempted to obtain all identified records. As such, the Veteran should be given the opportunity to submit or identify any outstanding private treatment records relevant to his renal cell carcinoma. Thereafter, all identified treatment records, to include his updated VA treatment records from the Durham, North Carolina, VA Medical Center, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following actions: 1. Obtain all available information regarding the Veteran's military duties and the likelihood of asbestos exposure from any appropriate agency. If any of those records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. The Veteran should be given an opportunity to submit or identify any outstanding treatment records relevant to his renal cell carcinoma. After securing any necessary authorization from the Veteran, all identified treatment records, to include those listed on his October 2002 and May 2008 VA 21-4142 forms and from the Durham VA Medical Center dated from March 2008 to the present, should be obtained. All reasonable attempts should be made to obtain any outstanding records. If any of those records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination so as to determine the etiology of his renal cell carcinoma. All appropriate tests should be conducted. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. The examination report should note that such a review took place. The examiner is requested to provide an opinion, based on a review of the claims folder and utilizing sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that the renal cell carcinoma was related to the Veteran's military service, to include as a result of exposure to asbestos, cigarette smoke, lead paint, and diesel fuel fumes, or his treatment for spitting up blood in June 1965. In offering his or her opinion, the examiner should discuss the article from the National Cancer Institute the Veteran submitted. In offering an opinion, the examiner should also acknowledge and discuss the Veteran's statements as to incurrence, to include his time spent in shipyards, on the USS Essex, and in poorly ventilated rooms with smokers, and continuity of symptomatology. The rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters 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 U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs