Citation Nr: 1549153 Decision Date: 11/20/15 Archive Date: 11/25/15 DOCKET NO. 14-43 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for renal cell carcinoma claimed as kidney removal due to cancer associated with radiation. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran served on active duty from December 1956 to November 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was not exposed to ionizing radiation during service. 2. The Veteran's renal cell carcinoma is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for renal cell carcinoma with kidney removal have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through a VCAA letter dated April 2012, the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA letter to the Veteran was provided in April 2012 prior to the initial unfavorable decision. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the April 2012 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, Department of the Navy findings, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. In this decision, the Board has found as a fact that there was no in-service injury or disease, including no chronic in-service symptoms of disability of the kidney, as well as no exposure to ionizing radiation. Because there is no in-service injury or disease to which competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for the right knee and a skin disability. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disability and his military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of both an in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Federal Circuit has also addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382 ; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279 Here, there is no medically competent evidence of kidney disease or kidney cancer or exposure to inonizing radiation or any other event in service since the Board has determined that the Veteran is not entitled to a presumption of exposure to ionizing radiation as discussed below, and no competent evidence of a link to service. While the Veteran has stated that he believes his kidney cancer is linked to service, the only evidence that it is related to his military service is the unsupported lay assertion of a connection inherent in any service connection claim. Since there is no evidence of kidney cancer in service or any injury or event in service that might have led to kidney cancer and no competent suggestion of a link to service, referral for a VA medical examination is not warranted. Service Connection - Renal Carcinoma The Veteran asserts that his renal cell carcinoma with kidney removal is the result of exposure to ionizing radiation during service. Specifically to his visiting Nagasaki, Japan several times between December 1956 and November 1959 when he deboarded the USS Guadalupe. VA regulations provide that diseases specific to radiation-exposed veterans shall be presumed to have been incurred in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2015). Cancer of the kidney is included in the definition of cancer of the urinary tract. Therefore, the presumption is applicable to cancer of the kidney. The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(ii). Here, the Veteran's lay statements note that he visited Nagasaki during service, more than ten years after the end of the period of occupation of Hiroshima or Nagasaki, Japan. VA requested a statement from the Department of the Navy to determine whether the Veteran experienced any exposure to ionizing radiation during service. The Navy responded in June 2012 and noted that a review of the Navy's exposure registry, by name, service number, and social security number, revealed no reports of occupational exposure to ionizing radiation pertaining to this Veteran. The information provided reflects the data in the Naval Exposure Registry for this individual. The Board finds that visiting Nagasaki more than a decade after the dropping of the atomic bomb does not constitute exposure to ionizing radiation during service. Therefore, the presumption of service connection does not apply. The Board must then address direct service connection. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's November 1959 separation report of medical examination shows a clinically normal genitourinary system. Service treatment records do not indicate any renal symptoms during service. The Veteran's renal cell carcinoma was diagnosed in 2006, more than 45 years after separation from service. The record shows no evidence of a connection between the Veteran's current disability and his service. Additionally, the Veteran has not asserted that his disability began during service. Therefore, the Board finds that the Veteran's current disability is not causally or etiologically related to service. Based on a review of all lay and medical evidence, the Board finds the weight of the evidence to be against the claim, as the weight of the evidence shows that the Veteran was not exposed to ionizing radiation, the Veteran's current renal cell carcinoma did not begin during service, and it is not causally or etiologically related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for renal cell carcinoma with kidney removal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for renal cell carcinoma with kidney removal is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs