Citation Nr: 1303771 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-40 496 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for renal cell carcinoma, status post left nephrectomy, secondary to service-connected blastomycosis of the left lung, status post lobectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from March 1949 to July 1969. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 2008 rating decision, by the Waco, Texas, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for renal cell carcinoma, status post, left nephrectomy, secondary to the service-connected blastomycosis, left lung, status post lobectomy. On November 27, 2012, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge sitting in Washington, D.C. A transcript of the hearing is of record. A January 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDING OF FACT Renal cell carcinoma was neither manifested in service nor in the Veteran's first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current renal cell carcinoma is related to his service, or was caused or aggravated by service-connected blastomycosis, left lung, status post lobectomy. CONCLUSION OF LAW Renal cell carcinoma was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in October 2007 from the RO to the Veteran, which was issued prior to the RO decision in December 2008. That letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination afforded the Veteran is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background. The Veteran served on active duty from March 1949 to July 1969. The service treatment reports (STRs) are negative for any complaints, findings or diagnoses of kidney disorder, including renal cell carcinoma. The STRs indicate that the Veteran was diagnosed with hepatitis with jaundice in October 1954. In October 1967, the Veteran was treated for pneumonia, left lower lobe, organism. In November 1967, the Veteran was admitted to a hospital for evaluation of pulmonary infiltrates; he underwent bronchoscopy, biopsy and thoracotomy; the pertinent diagnosis was North American blastomycosis, pulmonary; the lesion was removed at surgery, with good cooperation. On the occasion of his separation examination in November 1968, it was noted that the Veteran had a history of left thoracotomy, for blastomycosis, acute, left lower lobe. No kidney disorder was reported or diagnosed at that time. A medical board evaluation in March 1969 reported a finding of postoperative left lower lobectomy for blastomycosis, January 1968, left thoracotomy scar, well-healed. On his initial post service VA examination in September 1969, the Veteran did not report any complaints involving his kidneys. The examiner noted the Veteran's medical problems have mainly involved blastomycosis of the left lower lobe. The examiner indicated that the Veteran had surgery for this about a year and a half ago, and he had a remarkable recovery. No kidney disorder was reported. By a rating action in December 1969, the RO granted service connection for blastomycosis, left lung, with postoperative lobectomy. A 30 percent disability rating was assigned, effective August 1, 1969. The Veteran's initial claim for service connection for renal cell carcinoma (VA Form 21-4138) was received in August 2007. In a statement in support of his claim, dated in August 2007, the Veteran maintained that his kidney disorder which led to the removal of his left kidney developed as a result of his lung condition. The Veteran stated that it is not a coincidence or strange that the left kidney is located next to his diseased left lung that was adhering to his stomach from the blastomycosis. In the alternative, the Veteran maintained that the harmful radiation he received at a result of x-ray studies to locate the lesion in his left lung resulted in harmful radiation and damage to his left kidney. The Veteran indicated that he has radiation damage to his left kidney caused by radio frequency magnetic radiation from his job as Air Defense Electronic material maintenance personnel in the Army from October 1957 to August 1969. Submitted in support of the claim were VA treatment reports dated from July 1994 to November 1997. These records reflect treatment for basal cell carcinoma. Of record are treatment reports from William Beaumont Army Medical Center, dated from August 1997 to December 1997, reflecting ongoing treatment for left renal cell carcinoma. A hospital report, dated in September 1997, indicates that the Veteran had been followed over the past 8 to 9 months with serial urinalysis positive for microscopic hematuria. A renal ultrasound was performed in July 1997 demonstrated a left renal mass suggestive of neoplasm. A follow-up CT scan confirmed the presence of a mass that was thought to be renal cell carcinoma. He underwent a radical nephrectomy on September 3, 1997 for which he recovered unremarkably. His postoperative course was unremarkable. Additional treatment report from William Beaumont Army Medical Center, dated from June 2000 to August 2006, reflect treatment for a respiratory disorder. Of record is the report of a CT scan of the abdomen, performed June 30, 2005, reflecting findings of status post left nephrectomy, no masses were evident, and significant hypertrophic changes in the osseous structures. Received in December 2007 were additional treatment reports from William Beaumont Army Medical Center, dated from July 1994 to November 1997, reflecting ongoing treatment for skin cancer. Received in February 2008 were private treatment reports from Dr. Clinton A. King, dated from September 2007 to January 2008, reflecting treatment for a skin disability. Received in March 2008 were treatment reports from Dr. Sharon M. Kessler, dated from October 1990 through May 1993, reflecting treatment for skin problems. Also received in May 2008 were VA outpatient treatment reports dated from August 1997 to January 2008. Subsequently received in August 2008 were additional VA outpatient treatment reports, dated from March 2007 to August 2008, which reflect ongoing clinical evaluation and treatment for history of blastomycosis, status post left lower lobe lobectomy and COPD. The Veteran was afforded a VA examination in September 2008. It was noted that the Veteran underwent a left lower lobectomy in January 1968. It was also noted that renal cell carcinoma, status post, left nephrectomy was documented in 1997. The Veteran was initially diagnosed with blastomycosis and underwent a left lower lobectomy in January 1968. The Veteran stated that he was diagnosed with renal cell carcinoma and underwent left nephrectomy in 1997; no complications were associated with this. The Veteran stated that, following the left nephrectomy for renal cell carcinoma, he denied any treatment with radiation or chemotherapy. No reported renal dysfunction was documented. No lethargy, weakness, anorexia, or weight loss. He does not require catheterization, dilations and o drainage procedures. Following a physical examination, the examiner reported a diagnosis of blastomycosis, status post, left lower lobectomy with no current residual functioning limitation; and renal cell carcinoma, status post left nephrectomy. The examiner opined that renal cell carcinoma is less likely than not related to blastomycosis or occupational exposure while in the military. Currently, he had no residual of that condition. Received in May 2010 were VA progress notes dated from July 2001 to February 2010. These records show that the Veteran continued to receive clinical attention and treatment for history of blastomycosis, status post left lower lobe lobectomy and COPD. The Veteran was seen for a urology consultation in June 2008; at that time, he complained of microhematuria. It was noted that he had mild voiding symptoms, mostly not feeling of emptying. A CT scan in June 2008 revealed no hydronephrosis, or perinephric stranding. The assessment was microhematuria, status post left nephrectomy for renal cell carcinoma, and R/O bladder tumor. A primary care note, dated in July 2009, reported stable findings consistent with left nephrectomy without evidence of metastatic disease. A January 2010 treatment note indicates that the Veteran was seen for follow up evaluation for renal cancer and liver/lung mass; it was noted that latest CT last week at the VA shows a 1.5 cm right lower lung mass, probably a metastasis, enlarging compared with scan in April 2009. A PET/CT scan done in December 2009 was negative. The assessment was liver (dome) vs. lung (RLL) mass, hypervascular, 1.3 cm, enlarging, first detected in March 2009. R/O METS from renal cancer, status post left nephrectomy in September 1997, clear cell type. At his personal hearing in November 2012, the Veteran maintained that his renal cell carcinoma is directly related to military service. The Veteran contended that the lesions identified in service metastasized to his kidney. He has not had a medical professional say that there a relationship between hepatitis and renal cell carcinoma. The service representative stated that some medical professionals have stated that there is a link between hepatitis and renal cell carcinoma. The Veteran reported being hospitalized in Korea in 1954 for treatment for hepatitis. The Veteran indicated that he did not have any problems related to his kidneys in service. The Veteran reported that his kidney was removed in September 1997. The Veteran indicated that he was treated for hepatitis in service in 1954, and a year later was treated for a follow up of his hepatitis in Japan. The doctors told him that the cancer would recur in about 15 years; and, recently, in 2010, he was found to have metastasis of his cancer. III. Legal Analysis. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer or cardiovascular-renal disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The provisions of 38 C.F.R. § 3.310 indicate, in pertinent part, that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. The Veteran does not contend and the evidence does not show that his kidney cancer arose during service or within one year following discharge from service. In this regard, his STRs are negative for any kidney cancer or renal disorder. The Veteran underwent VA examinations in 1969 and 1972, neither of which showed any complaint or finding of renal cancer or kidney problems. VA treatment records specifically showed no complaint with respect to his kidneys in 1994 and 1995. The Veteran was first diagnosed with renal cancer in September 1997. At that time, the Veteran had been followed at the VA for several months with serial urinalyses positive for microscopic hematuria. A renal ultrasound in July 1997 demonstrated a left renal mass suggestive of neoplasm. A CT scan confirmed the presence of a mass that was thought to be renal cell carcinoma. In September 1997, he underwent a left radical nephrectomy. It was noted that his postoperative course was unremarkable. Thus, there is no evidence of pertinent disability in service or for many years thereafter, and none of the evidence of record even suggests a link between his military service and his kidney cancer. The Veteran has claimed that his military occupational specialty exposed him to radio frequency magnetic radiation that could have caused renal problems. There is no competent evidence to support this claim. The Veteran is not shown to have the expertise to determine the etiology of renal cell carcinoma, and the September 2008 VA examiner determined it was unlikely that occupational exposure was related to the renal cell carcinoma. A clear preponderance of the evidence is against a finding that renal cell carcinoma is directly related to service. Consequently, despite evidence of a current diagnosis of renal cell carcinoma, status post nephrectomy, service connection for renal cancer on a direct basis cannot be granted as there is no medical or other evidence showing that his cancer is or may be related to service. The Veteran specifically argues that his renal cell carcinoma, status post left nephrectomy, is secondary to his service connected blastomycosis, left lung, status post lobectomy. Service connection may be granted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). As noted above, the record indicates that the Veteran is currently diagnosed with renal cell carcinoma, status post lobectomy. And, service connection has been established for blastomycosis, left lung, status post lobectomy. What remains necessary to establish secondary service connection for the renal cell carcinoma is competent evidence that establishes that such disability was either (a) caused by or (b) aggravated by the service-connected blastomycosis, left lung, status post lobectomy. There is only one medical opinion of record that addresses the question of whether there is an etiological relationship between the Veteran's renal cell carcinoma and his service-connected blastomycosis, left lung, status post lobectomy. This opinion appears in the September 2008 VA examination report. This record diagnoses blastomycosis, status post left lower lobectomy, with no current residual functional limitation, and renal cell carcinoma, status post left nephrectomy. The examiner opined that the Veteran's renal cell carcinoma is less likely than not related to blastomycosis or occupational exposure while in the military. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds that the September 2008 VA examination report is the most probative evidence with respect to the etiology question. The Board notes that the examination in this case was conducted by a physician who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The examiner thoroughly reviewed the medical evidence of record; his examination report discusses the Veteran's pertinent medical history as contained in these medical records and as reported by the Veteran himself during the examination. For these reasons, the Board finds that the September 2008 VA examination report presents probative evidence to the question at hand. Furthermore, the Board notes that there is no contradictory etiology opinion of record from a competent medical professional. With respect to the Veteran's own opinion, the Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. As discussed above, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. However, as a lay person, he is not competent to offer an opinion on complex medical questions, such as determining that his renal cell carcinoma. Therefore, this is not a case in which the Veteran's beliefs alone can serve to establish any association between his renal cell carcinoma, status post lobectomy and blastomycosis, status post left lower lobectomy. See Jandreau, supra. Service connection for renal cell carcinoma, status post lobectomy, must be denied. In summary, to establish service connection for renal cell carcinoma, the Veteran must show that the diseases are somehow related to his active service. In this case, there is no evidence of renal cancer in service, there is no competent evidence of record showing that renal cancer was manifested within the Veteran's first post-service year or that indicates that such disability is related to his active service; and the competent evidence is against a finding that the Veteran's renal cancer was caused or aggravated by his service-connected blastomycosis, status post left lower lobectomy. Accordingly, service connection for renal cell carcinoma on presumptive (for malignant tumors), direct, or secondary bases is not warranted. With regard to the Veteran's contention that his renal cell carcinoma was caused or aggravated by his hepatitis, he has conceded that no doctor had told him of this. The representative suggested that there may be a relationship, but did not cite to any authority or submit competent evidence of such. The service treatment records reflect that hepatitis was acute and responded to treatment. The September 1969 VA examination revealed no residuals of infectious hepatitis and none is shown in the available clinical record. A clear preponderance of the evidence is against a finding that hepatitis is manifested by residuals or that the infectious hepatitis in service caused renal cell carcinoma many years later. ORDER Service connection for renal cell carcinoma, status post left nephrectomy, secondary to blastomycosis, status post left lower lobectomy, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs