Citation Nr: 1331395 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-01 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a left kidney disorder to include renal cell carcinoma and nephrectomy, to include as secondary to service-connected disabilities. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, the appellant in this case, had active service from May 1985 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Indianapolis, Indiana, Regional Office (RO). In June 2013, the Veteran testified from the RO at a videoconference Board hearing before the before the undersigned Veterans Law Judge in Washington, DC. A transcript of this hearing is of record. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. Review of the Virtual VA paperless claims processing system reveals that VA treatment records were associated with the file in August 2013 after the issuance of the supplemental statement of the case in January 2013; however, these additional VA treatment records do not address the claimed disability that is subject to this appeal and are not pertinent to the present appeal. For this reason, issuance of a supplemental statement of the case is not warranted and there is no prejudice to the Veteran. See 38 C.F.R. § 19.31 (2013). FINDINGS OF FACT 1. The Veteran did not sustain an injury or disease of the left kidney during service. 2. The Veteran did not experience chronic symptoms of disability of the left kidney during service. 3. The Veteran did not experience continuous symptoms of disability of the left kidney in the years after service. 4. Renal cell carcinoma of the left kidney did not manifest to a degree of ten percent within one year of service separation and was first diagnosed in February 2008. 5. The left kidney renal cell carcinoma and nephrectomy are not caused by any in-service event, are not related to active service, and are not caused or aggravated by a service-connected disability or the pain medications used to treat the service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for left kidney renal cell carcinoma and nephrectomy, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a letter dated in November 2008. The VCAA letter informed the Veteran of the evidence and information needed to substantiate a claim for service connection including secondary service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. The letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The U.S. Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the December 2009 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claim on appeal. The claim was readjudicated in January 2010 and January 2013. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained and are associated with the claims folder. VA treatment records dated from 2007 to August 2013 and the Veteran's Social Security Administration (SSA) records are associated with the claims folder. The Veteran submitted private medical records in support of his claim. In November 2008, VA contacted the Veteran and asked him to identify pertinent evidence in support of his claim. In November 2008, the Veteran informed VA that he had no additional information or evidence to submit. VA provided an examination in December 2008 to obtain medical evidence as to the nature and likely etiology of the claimed disability. The examination and medical opinion are adequate because the examination and medical opinion were performed by a medical professional based on review of the claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner considered the Veteran's medical history including his reported medical history and provided a medical opinion as to whether the left kidney renal cell carcinoma and nephrectomy were secondary to pain medication the Veteran took to treat his service-connected disability. The Veteran has not challenged the adequacy of the examination or medical opinion obtained for this issue. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claim and VA met its duty to assist the Veteran. Regarding the June 2013 Board videoconference hearing, when conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010); 38 C.F.R. § 3.103 (2013). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. See Bryant, 23 Vet. App. at 497. Here, during the videoconference Board hearing, the Veterans Law Judge specifically noted the issue on appeal. Then, having heard the Veteran's evidence, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Specifically, the Veterans Law Judge asked for evidence that might be used to substantiate the Veteran's claim for service connection and informed the Veteran that a nexus opinion which established that the renal carcinoma was caused by the medications the Veteran took to treat the service-connected disabilities was needed to substantiate the claim. The Veterans Law Judge queried the Veteran specifically regarding whether he had a nexus medical opinion to submit in support of his claim; therefore, the Veterans Law Judge substantially complied with the requirements of 38 C.F.R. § 3.103. See Bryant at 496-97. Service Connection Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, a malignant tumor such as renal cell carcinoma is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as a malignant tumor become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2013); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. 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). Pursuant to 38 C.F.R. § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran filed the claim for service connection for a kidney disorder in September 2008, after the October 2006 effective date of the amended provision of 38 C.F.R. § 3.310. Consequently, the Board will apply the revised (current) version of 38 C.F.R. § 3.310. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. Service Connection Analysis The Veteran contends that medications he took to treat the pain from the service-connected right knee disability caused the renal cell carcinoma in the left kidney and this led to the left kidney nephrectomy. He asserts that the long term use of ibuprofen (800 mg) caused the renal cancer. See the February 2009 statement and the Veteran's testimony at the hearing before the Board in June 2013. There is competent evidence that the Veteran underwent a left kidney nephrectomy due to cystic clear cell carcinoma of the renal cortex, grade II. See the March 2008 pathology report. The Veteran underwent a left sided hand assist laparoscopic nephrectomy. A September 2009 private urology record indicates that clinically, there was no sign of disease. CT scan revealed no evidence of metastatic disease. The Board finds the weight of the competent and credible lay and medical evidence shows that the left kidney cystic clear cell carcinoma and nephrectomy are not proximately due to or aggravated by medication used to treat the service-connected right knee and lumbar spine disabilities or other service-connected disabilities. There is competent and credible evidence which establishes that there is no relationship between the incurrence of renal cell carcinoma and left kidney nephrectomy and the use of pain medications, specifically Ibuprofen, which the Veteran used to treated the service-connected right knee and lumbar spine disabilities. In December 2008, VA sought a medical opinion as to whether the renal cell carcinoma and the resulting left kidney nephrectomy were proximately due to or aggravated by the pain medication the Veteran took for the service-connected right knee and lumbar spine disabilities. The Veteran's claims file was reviewed by the examiner in connection with the examination and the Veteran was examined. The Veteran reported that renal cell carcinoma was diagnosed in February of that year and he underwent a left kidney nephrectomy in March 2008. The Veteran stated that he believed that the medications he took for the right knee pain caused the renal cell carcinoma. The Veteran reported that he was on chronic use of Ibuprofen and Tylenol 3 for over 20 years. The diagnosis was left renal cystic cell carcinoma grade II status post laparoscopic hand assisted excision. The VA examiner stated that no medications were known to be associated with this type of carcinoma, particularly the medication the Veteran was on. The examiner stated that there is no known relationship between the Veteran's past medical history particularly anything related to the right knee disability and this type of renal cancer and the diagnosis was made incidentally. The Board finds the December 2008 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive review of the entire evidentiary record. The VA examiner reviewed the claims folder, examined the Veteran, and considered the Veteran's medical history and the Veteran's theory as to the cause of the renal cell carcinoma before rendering the medical opinion. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. In Nieves-Rodriguez, 22 Vet. App. 295, the Court held that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. For these reasons, the Board has assigned great probative weight to the opinion of the VA physician. The Veteran himself has attempted to relate the renal cell carcinoma of the left kidney to the chronic use of pain medications for his service-connected right knee disability and the lumbar spine disability. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the cause and onset of renal cell carcinoma falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology. Lay testimony on the question of relating the renal cell carcinoma to the use of pain medications to treat a service-connected disability is not competent in the present case because the Veteran is not competent to provide a medical opinion as to the cause of cancer. See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4 (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). An opinion as to the cause of renal cell carcinoma or other type of cancer would require vast medical knowledge of the epidemiology of cancer. Cancer is a complex group of diseases with many possible causes. The Veteran is not shown to have any medical expertise or training in the field of cancer or any other medical field. The Veteran does not have the medical expertise to render a medical opinion as to the side effects of certain medication, including whether such medications cause cancer. The Veteran has not submitted any competent medical evidence to support this contention. There is no competent medical evidence of record indicating that the left kidney renal cell carcinoma and nephrectomy were caused or aggravated by any of the service-connected disabilities or medications used to treat these disabilities. The weight of the competent and probative evidence establishes that the Veteran's renal cell carcinoma and left kidney nephrectomy are not proximately due to or aggravated by the service-connected right knee or lumbar spine disabilities or the medications used to treat these disabilities. 38 C.F.R. § 3.310; Allen, supra. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for renal cell carcinoma and left kidney nephrectomy on a secondary basis, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board has also considered whether service connection for renal cell carcinoma and left kidney nephrectomy is warranted on a presumptive or direct basis. In that regard, based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the Veteran did not sustain a left kidney injury or disease during service; did not experience chronic symptoms of disability of the left kidney during service; did not experience continuous symptoms of disability of the left kidney in the years after service; and renal carcinoma of the left kidney was not manifested to a degree of ten percent within one year of service separation to meet any of the presumptive service connection criteria. On the question of left kidney injury or disease during service, the service treatment records do not document any kidney injuries or disease, or even kidney or urological complaints, findings, diagnosis, or treatment of a kidney disorder during service. Renal cell carcinoma was not diagnosed in service. Review of the lay and medical evidence shows that renal cell carcinoma of the left kidney was diagnosed in February 2008, over 20 years after service separation. The Veteran does not allege and the lay and medical evidence does not show any chronic symptoms in service, continuous symptoms after service, or a diagnosis of renal cell carcinoma within one year of service separation in November 1986. The evidence of record shows no complaints, diagnosis, or treatment for any kidney disability until 2008, over 20 years after service discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). The absence of post-service complaints, findings, diagnosis, or treatment after service for many years until 2008 is one factor, considered in addition to the other factors stated in this decision, which tend to weigh against a finding of either chronic kidney symptoms in service or continuous symptoms of a kidney disorder after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Therefore, the criteria for presumptive service connection pursuant to 38 C.F.R. § 3.303(b) for chronic in service symptoms and continuous post service symptoms are not met. The Board finds that the weight of the competent and credible evidence establishes that the renal cell carcinoma did not manifest within one year of service separation and first manifested many years after service separation. The first mention or diagnosis of renal cell carcinoma is in private treatment records dated in February 2008. Such findings are to be considered in the context of the other evidence showing no in-service injury or disease, and no chronic or continuous symptoms. For this reason, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for a chronic disease manifested to 10 percent within one year from service separation is not warranted. Finally, the Board finds that the weight of the evidence demonstrates that the left kidney renal cell carcinoma and nephrectomy are not caused by any in-service event or injury and are not otherwise related to service by competent evidence. There is no medical evidence of record which medically relates the left kidney renal cell carcinoma and nephrectomy to active service. The weight of the evidence demonstrates no renal cell carcinoma during service and no diagnosis of this disorder until 20 years after service separation. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a kidney disorder to include renal cell carcinoma and left kidney nephrectomy as a presumptive disease and on a direct basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for left kidney renal cell carcinoma and nephrectomy, including as secondary to service-connected disabilities, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs