Citation Nr: 1755046 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-37 269A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cervical spinal stenosis, claimed as a thoracic and cervical spine disability. 2. Entitlement to service connection for renal cancer, status post nephrectomy, to include as due to exposure to herbicides and contaminated water. 3. Entitlement to service connection for pulmonary disabilities, including bronchitis, chronic obstructive pulmonary disease (COPD), and asthma. REPRESENTATION Veteran represented by: Richard K. Hurley, Jr., Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and Ms. D. B. ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing before personnel at the RO in August 2009, and before a Veterans Law Judge (VLJ) in April 2011. In October 2016, the Veteran was informed that the VLJ who had presided over the Board hearing was no longer employed by the Board, and the Veteran was offered an opportunity for a new hearing, to which he accepted. Pursuant to a May 2017 Board remand, the Veteran testified at a videoconference hearing before the undersigned VLJ in July 2017. Transcripts of the three hearings have been associated with the electronic claims file. The Board remanded the case for further development in November 2011, March 2015, and May 2017. The matter is now back before the Board. The issue of entitlement to service connection for cervical spinal stenosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's kidney cancer is presumably etiologically related to his exposure to contaminated water at Camp Lejeune. 2. The Veteran served within the Republic of Vietnam during the Vietnam era, and was therefore presumptively exposed to herbicide agents. 3. The Veteran's pulmonary disabilities, including bronchitis, COPD, and asthma, are not shown to be related to his military service, to include exposure to herbicides or fumes from mortar rounds. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney cancer have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.303, 3.309(a) (2017). 2. The criteria for service connection for a pulmonary disability, including bronchitis, chronic obstructive pulmonary disease, and asthma, have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify VA's duty to notify was satisfied by letter April 2008. Neither the Veteran, nor his attorney, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Available service treatment records, post-service VA and private treatment records, and lay statements have been associated with the record. The Veteran was afforded a VA examination for his renal cancer and pulmonary disabilities in January 2012. An addendum medical opinion was provided in February 2016. The Board has carefully reviewed the VA examination and addendum opinion of record and finds that they are, along with the other evidence of record, adequate for purposes of rendering a decision in the instant appeal. Pursuant to the Board's May 2017 remand, the RO scheduled the Veteran for a videoconference hearing in July 2017. The Board also notes that actions requested in the prior remands have been undertaken and that the remand directives were substantially complied with. In pertinent part, the March 2015 remand instructions directed that an addendum medical opinion be provided for the Veteran's pulmonary disabilities. Per remand instructions, in February 2016, the VA examiner provided medical opinions for the Veteran's bronchitis, COPD, and asthma, and addressed the Veteran's contentions regarding his exposure to herbicides and fumes from mortar rounds. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the Veteran's attorney asserts that the Veteran's VA examination and addendum opinion were not given by a medical doctor, but by a physician's assistant who did not provide evidence that she had the particular training, research, or expertise required to give the requested medical opinions. See July 2017 Legal Memorandum. The Board notes that competent medical professional evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). As such, the Board finds that a physician's assistant is qualified by education and training to perform physical examinations, and therefore, the results of the examination are considered to constitute competent evidence. As the Veteran's attorney has not explained or shown how the adequacy of the examination or opinion was compromised, the Board presumes that the examiner was competent and sufficiently informed to render the requested opinions. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that the Board is "entitled to assume" the competency of a VA examiner without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). As the Veteran has not identified any additional evidence pertinent to the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Accordingly, the Board will address the merits of the Veteran's claims. II. Legal Criteria for Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. § 1154(a); 38 C.F.R. § 3.303(a). Renal Cancer The Veteran is seeking service connection for renal cancer, status post nephrectomy. Specifically, he contends that his renal cancer is due to exposure to Agent Orange while serving in Vietnam. Alternatively, the Veteran contends his renal cancer is due to exposure to contaminated water while stationed at Camp Lejeune. In addition to the law above, service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine CorpAir Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173(Jan. 13, 2017) (to be codified at 38 C.F.R. pt. 3). This presumption may be rebutted by affirmative evidence to the contrary. Id. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, Aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 82 Fed. Reg. at 4,185 (to be codified at 38 C.F.R. § 3.309(f)). As such, if a Veteran is diagnosed with a listed condition, then the disability is presumed to be related to service. Id. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. They do not apply retroactively to claims previously adjudicated. Although the Board remanded this claim in November 2011, March 2015, and May 2017, a remand is not considered a final decision. Thus, this matter is still pending and the amended regulations apply to the Veteran's claim. The Board finds that competent, credible, and probative evidence establishes that the Veteran's renal cancer is etiologically related to his active duty service. The record establishes that the Veteran served in Camp Lejeune during the recognized contamination period. See Military Personnel Record. VA concedes that any veteran who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. The record also establishes that the Veteran was diagnosed in 1993 with kidney cancer. See March 1993 Private Treatment Record. Given the amendments to 38 C.F.R. §§ 3.307 and 3.309, the Veteran's kidney cancer is presumed to be related to his exposure to contaminated water at Camp Lejeune during his military service. For this reason, service connection for kidney cancer is warranted. Pulmonary Disabilities, Including Bronchitis, COPD, and Asthma The Veteran is seeking entitlement to service connection for pulmonary disabilities, including bronchitis, COPD, and asthma. Specifically, he contends that his pulmonary disabilities are due to exposure to Agent Orange while serving in Vietnam. Alternatively, the Veteran contends his pulmonary disabilities are due to the inhalation of fumes from mortar rounds. See April 2011 Board Hearing Transcript. Private treatment records reveal that the Veteran was diagnosed with asthma and fungal bronchitis in October 2005. In October 2007, the Veteran was diagnosed with recurrent bronchitis. A March 2012 VA treatment record reveals a diagnosis of severe COPD with asthma. As the Veteran is diagnosed with pulmonary disabilities, the first element of Shedden is met. As for the second element of Shedden, the Veteran's service treatment records are silent for any complaints of, diagnoses of, or treatment for pulmonary-related problems in service. His August 1962 Report of Medical Examination upon enlistment shows that his sinuses, mouth, throat, lungs, and chest were clinically evaluated as normal. On his corresponding August 1962 Report of Medical History, the Veteran denied sinusitis, asthma, shortness of breath, pain or pressure in chest, and chronic cough. His October 1966 Report of Medical Examination upon separation from service reveals that his sinuses, mouth, throat, lungs, and chest were again clinically evaluated as normal. Nonetheless, in addition to the law stated above, a Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f) (2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). In order to benefit from the presumption of service connection for diseases associated with herbicide agents exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309(e), which do not include pulmonary disabilities, such as bronchitis, COPD, and asthma. However, diseases not enumerated in said regulation do not preclude service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). As the Veteran served in Vietnam during the relevant time period, the Board concedes herbicide exposure. Further, the Veteran asserts that he was exposed to fumes from mortar rounds. The Veteran's Form DD 214 shows that the Veteran's military occupational specialty (MOS) was that of a mortar man, and therefore, the Board finds that the Veteran is credible and competent to report that he was exposed to mortar fire fumes. The second element of Shedden has been met. As to the third element of Shedden, the Board finds that there is no competent evidence of record which links the Veteran's pulmonary disabilities to his active duty service, to include exposure to herbicides and fumes from mortar rounds. The Veteran was afforded a VA examination for his pulmonary disabilities in January 2012. The VA examiner indicated diagnoses of asthma and COPD made in the 2000s and noted that COPD was predominantly responsible for the Veteran's limitation in pulmonary function. The examiner also noted the Veteran's contentions that these disabilities, in his belief, were due to exposure to herbicides and fumes from mortar rounds while in service. Subsequent to examination and review of the Veteran's records, the examiner opined that the Veteran's COPD was less likely as not incurred in or otherwise a result of his active duty service. She noted that there was no evidence of a respiratory condition while in service and that his respiratory condition was most likely a result of his long history of heavy smoking. The examiner explained that smoking is the primary risk factor for decline in respiratory function and that active cigarette smoking is overwhelmingly the most important factor for developing COPD. The examiner continued that although symptoms of COPD may be present earlier, people are typically diagnosed with COPD when they are older than 45 and have at least a 20 pack-year smoking history. Pursuant to a March 2015 Board remand, an addendum medical opinion was obtained from the January 2012 VA examiner in February 2016. The examiner noted diagnoses of asthma, COPD, and bronchitis and opined that the disabilities were less likely than not caused by exposure to Agent Orange or to fumes from mortar rounds. She explained that there was no epidemiologic evidence of a causal association between bronchitis, COPD, and asthma and exposure to Agent Orange or fumes from mortar rounds. The examiner opined that the Veteran's current respiratory disabilities were at least as likely as not due to a long history of smoking and noted that records indicated that the Veteran smoked three packs of cigarettes per day for 20 years. She explained that medical studies have established that smoking is the primary risk factor for the decline in respiratory function and for acute respiratory infections. The risk increased with the quantity of cigarettes, duration of smoking, and the starting age. The Board acknowledges the Veteran's belief that his pulmonary disabilities are related to his in-service exposure to herbicides and fumes from mortar rounds. As a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, as a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the etiology of his pulmonary disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran's opinions as to the etiology of his pulmonary disabilities are without probative value. The Board considers the January 2012 medical opinion and the February 2016 addendum opinion of the VA examiner to be highly probative as to the issue of etiology/nexus as it was rendered after a thorough review of the Veteran's claims file, his medical history, and is consistent with other evidence of record, including service treatment records and post-service treatment records. It also contains a well-supported rationale. See, e.g., Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). There are no probative medical opinions of record to the contrary. As such, the Board finds that the third element of Shedden, a causal nexus, has not been met. In summary, the Board finds that the weight of the evidence does not support a finding that the Veteran's pulmonary disabilities, including bronchitis, COPD, and asthma, are etiologically related to a disease, injury, or event in service, to include exposure to herbicides and fumes from mortar rounds. As a result, service connection for a pulmonary disability, to include bronchitis, COPD, and asthma, is not warranted. ORDER Entitlement to service connection for renal cancer, status post nephrectomy, as due to exposure to contaminated water at Camp Lejeune, is granted. Entitlement to service connection for pulmonary disabilities, including bronchitis, COPD, and asthma, is denied. REMAND The Veteran is seeking service connection for cervical spinal stenosis, claimed as a thoracic and cervical spine disability. Specifically, the Veteran contends he injured his back carrying heavy packs while in Vietnam. He also contends that he suffered an injury to his back when he fell down a 30-foot ravine, hit the ground with his feet, and then fell on his back. In an April 2011 Board hearing, the Veteran testified that his MOS was a mortar man and that he served as an 81-millitmeter mortar section leader in Vietnam. His squad would travel with the line companies and support them with illumination fire, high explosive fire, or whatever fire they needed. The Veteran carried three rounds, weighing 20 pounds each; a bipod, weighing 40 pounds; six fully loaded magazines and an M14 rifle; weighing 10 pounds. The Veteran approximated that he weighed 170 pounds at the time and carried 130 pounds on his back. Due to the circumstances of combat, he reported that he would need to run with the heavy weight on his back at times. The Veteran reported that he traveled from Qui Nhon to Chu Lai to Phu Bai to Quang Tri, taking the equipment everywhere he went. The Veteran also testified that he fell into a 30-foot deep ravine during a fire mission one evening. He landed on his feet, went down, and was out for a while. In the March 2015 Board remand, the VA examiner that conducted the January 2012 VA examination was asked to provide an addendum opinion for the Veteran's cervical spinal stenosis by specifically taking into account his credible contentions regarding the carrying of heavy equipment on his back and his injury from a fall down a ravine while in service. In her February 2016 addendum opinion, the examiner noted that there was no objective evidence of a chronic cervical or thoracic spine condition in service or in close proximity to service. She also noted that there was no objective evidence to indicate an injury or trauma in service severe enough to cause the Veteran's cervical spine disability. However, the examiner failed to address the Veteran's contentions as directed by the March 2015 remand directives. See Stegall at 271. Thus, remand is again necessary to obtain a VA medical addendum opinion regarding the Veteran's cervical spinal stenosis and his contentions that he injured his back from the continuous carrying of heavy weight on his back and from a 20-foot fall down a ravine while in service. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. The Veteran's entire electronic claims file should be furnished to a VA examiner different from the one who conducted the January 2012 VA examination and April 2016 addendum opinion, if possible. The examination report must include a notation that this record review took place. If, and only if, determined necessary by the VA examiner, the Veteran should be scheduled for another VA examination. The examiner should provide an addendum opinion which specifically addresses the following question: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cervical spinal stenosis is etiologically related to active duty service, to specifically include his credible reports of consistent carrying of heavy equipment on his back and his fall down a 30-foot deep ravine while in service. A complete rationale for any opinion offered should be provided. 3. After completing the above, the RO should readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought remains denied, the RO should furnish the Veteran and his attorney a Supplemental Statement Of the Case (SSOC) and return the case to the Board. The Veteran and his attorney have the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States 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. §§ 5109B, 7112 (2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs