Citation Nr: 1756522	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  17-07 407	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for atelectasis (claimed as hernia pressing against lung) as secondary to service-connected left kidney cancer, post-left nephroureterectomy, residuals.

2. Entitlement to service connection for hernia as secondary to service-connected left kidney cancer, post-left nephroureterectomy, residuals.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty from December 1961 to December 1967. 

This appeal to the Board of Veterans' Appeals (Board) arose from a December 2015 rating decision (Veteran notified in January 2016) of a Department of Veterans' Affairs (VA) Regional Office (RO) that denied the claims.

The issue of entitlement to service connection for hernia as secondary to service-connected left kidney cancer, post-left nephrectomy, residuals is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The weight of the probative evidence of record shows that atelectasis in the lung bases has resolved, but had been shown earlier in the appeal period.


CONCLUSION OF LAW

The requirements for entitlement to service connection for atelectasis as secondary to service-connected left kidney cancer, post-left nephroureterectomy, residuals, have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veteran's claim was processed under the Fully Developed Claim procedures. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  See 38 C.F.R. § 3.159(c).  The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. Neither the Veteran nor his representative has asserted that there are additional records to obtain. As such, the Board will proceed to the merits of the appeal.

Governing Law and Regulations

A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995).

In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Discussion

The Veteran was diagnosed with left renal cell carcinoma in 2001, and his left kidney was removed in 2002. (08/10/2001 Medical Treatment-Non-Government Facility, p. 4; 09/10/2002 Government Facility). An August 2014 rating decision granted service connection for kidney cancer, effective in May 2008. (08/29/2014 Rating Decision-Narrative) Hence, the second Wallin element is shown by the evidence of record; and, what remains is determining whether the other two are present.

The December 2015 respiratory examination report (12/13/2015 C&P Exam) reflects that the Veteran reported that his lung was "nicked" when the left kidney was removed. About four months prior to the examination, he started experiencing sneezing spells, coughing, and shortness of breath. He used nasal sprays and antihistamines as treatment. The examiner noted that August 2015 imaging showed minimal atelectases in the lung bases. The examiner noted further that an April 2012 CT scan of the lung indicated a mild bibasilar atelectasis; the impression was "postsurgical changes related to left nephroureterectomy without evidence for local recurrence or metastatic disease. October 2015 imaging showed minimal atelectases in the lung bases; and, December 2012 X-rays showed no atelectases. Based on the records and examination of the Veteran, the examiner opined that it was at least as likely as not that the atelectases was causally connected to the left kidney surgery, but that the condition had resolved. Id., p. 2, 13.

The Court has held that the requirement of a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007). VA received the Veteran's claim in September 2015. (09/11/2015 Fully Developed Claim).  As just noted above, the examiner noted that there was minimal atelectases shown on October 2015 imaging. Hence, the Board finds that the evidence of record shows the presence of current disability.  Moreover, a VA examiner related the disorder to the kidney surgery.  Accordingly, the elements of service connection have been met here.  To the extent that residuals of the disability may no longer exist this is a rating issue to be addressed by the AOJ in the first instance.

In light of all of the above, an award of service connection is deemed warranted.   



ORDER

Entitlement to service connection for atelectases (claimed as hernia pressing against lung) as secondary to service-connected left kidney cancer, post-left nephroureterectomy, residuals is granted.


REMAND

Post-operative urology records dated in July 2002 reflect that a flank hernia developed as a result of the kidney surgery, and a binder was provided. A July 2003 entry noted an incisional defect/hernia. An October 2007 CT scan of the chest revealed a small hiatal hernia. (08/17/2008 Medical Treatment-Government Facility, p. 7, 34, 37)

The December 2015 VA examination report reflects that an examiner reviewed the claims file and the Veteran's electronic records and opined that the Veteran did not have an incisional or any other abdominal hernia. The examiner, thus, opined that it was not at least as less likely as not that the Veteran has an abdominal hernia, left flank, that is proximately due to or the result of his service-connected left nephroureterectomy. (12/24/2015 C&P Exam, p. 2)

The Board, however, notes that a May 2017 examination conducted in conjunction with a claim for an increased rating of the left kidney cancer residuals noted a ventral hernia on the left. The examiner did not comment on any potential etiology. (05/31/2017 C&P Exam, p. 8) Hence, additional medical assessment is indicated.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain any related treatment records generated since the November 2016 Statement of the Case (SOC) and add them to the claims file.

2. After the above is complete, send the claims file to the examiner who conducted the December 2015 hernia examination. Ask the examiner to provide an addendum that addresses the question of whether there is at least a 50-percent probability that the left ventrical hernia noted on examination in May 2017 is due to the Veteran's left nephroureterectomy?

If the answer to the above question is, No, is there is at least a 50-percent probability that the service-connected left nephroureterectomy residuals chronically worsens the left ventrical hernia? If so, please provide a baseline of aggravation in terms of a percentage.

The examiner must provide a full explanation and rationale for all opinions provided.

If the examiner who conducted the December 2015 medical review is no longer available, refer the claims file to a comparably qualified examiner. Should a substitute examiner advise that the requested opinion cannot be rendered without an examination, the AOJ shall arrange the examination.

3. After the above is complete, re-adjudicate the issue on appeal. If the decision remains adverse to the Veteran, issue him and his representative a Supplemental SOC (SSOC) and then return the case to the Board, if all is in order.    

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs