Citation Nr: 1757725	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  14-32 135A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for a left hand disability.

2. Entitlement to service connection for a left arm disability, to include as due to a left hand disability.

3. Entitlement to service connection for lung cancer, to include as secondary to herbicide exposure.

4. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure.

5. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, to include as secondary to service-connected disability.

6. Entitlement to service connection for kidney cancer, to include as secondary to herbicide exposure.

7. Entitlement to service connection for loss of kidney, to include as secondary to herbicide exposure.

8. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Dean, Counsel


INTRODUCTION

The Veteran had active service from November 1966 to November 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In October 2016, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record.

The Board remanded this appeal in February 2017 for further development.

The Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, to make clear that the issue before the Board is entitlement to a psychiatric disability, regardless of the particular diagnosis.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of service connection for a left hand disability, diabetes mellitus, an acquired psychiatric disability, kidney cancer, loss of kidney, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran has not been diagnosed as having a left arm disability.

2.  The Veteran has not been diagnosed as having lung cancer.


CONCLUSIONS OF LAW

1.  Service connection for a left arm disability is not warranted.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

2.  Service connection for lung cancer is not warranted.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VA satisfied the duties to notify and assist in the appeal for service connection for a left arm disability and lung cancer, and neither the Veteran nor his representative has asserted any error as to the duties.  See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  The Veteran was provided VA examinations regarding these claims.  While the Board acknowledges the Veteran's general September 2017 statement that he disagrees with the VA examiners, as discussed in greater detail below, the Board finds the examinations to be adequate upon which to adjudicate the merits of this appeal.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  Here, during the October 2016 Board hearing, the undersigned identified the issue on appeal and focused on the elements necessary to substantiate the claims and evidence that could assist the Veteran in substantiating the claims.  The Veteran has not suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied.

Legal Criteria, Factual Background, and Analysis

Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).

In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004).  Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability.  38 C.F.R. § 3.310.  Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability will be service-connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disability.  38 C.F.R. § 3.310.  In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.322.

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2017).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

I. Left Arm Disability

The Veteran contends he has a left arm disability due to service, to include related to a left hand disability.

Initially, the Board notes the Veteran's service treatment records do not reflect treatment for a left arm disability during service

On March 2017 VA examination, the Veteran reported a left hand laceration during service, but denied any problems with his left elbow and forearm.  Physical examination was normal, and the examiner declined to diagnose a left arm disability.

In the absence of proof of a current disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  The Veteran has not submitted any medical evidence that shows he has a diagnosed left arm disability during the appellate period or a diagnosis close in time to the appeal period.  The March 2017 VA examiner specifically stated the Veteran did not have a left arm disability.  Although the Veteran is competent to discuss symptoms, he is not competent to provide statements regarding the diagnosis of any such disability.

Here, because there is no diagnosis of a left arm disability, service connection cannot be granted.  Brammer, 3 Vet. App. 223.  The competent evidence is against a finding of a left arm disability at any time relevant to the appeal period.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. 
Lung Cancer

The Veteran contends he has lung cancer due to service, to include due to exposure to a chemical cleaner, methyl ethyl ketone (MEK).

The Veteran's post-service medical records reflect that a 2009 computerized tomography (CT) scan showed a nonspecific lower lobe pulmonary nodule.

On March 2017 VA examination, the Veteran reported he was diagnosed with emphysema in the 1980s, and that two "suspicious spots" were noted on his lungs several years ago following kidney surgery.  He denied any recent lung problems or diagnoses, to include lung cancer, lung surgery, or lung biopsy.  He reported shortness of breath for three years.  The examiner noted that a May 2016 chest x-ray showed the cardio-mediastinal silhouette and pulmonary vasculature were within normal limits.  The impression was no acute cardio-pulmonary process.  The examiner did not diagnose a lung disability, to include lung cancer.

In the absence of proof of a current disability, there can be no valid claim for service connection.  Brammer v, 3 Vet. App. 223; Gilpin, 155 F.3d 1353.  The Veteran has not submitted any medical evidence that shows he has had lung cancer or another lung disability during the appellate period or a diagnosis close in time to the appeal period.  The March 2017 VA examiner specifically declined to diagnose a lung disability, to include lung cancer.  Although the Veteran is competent to discuss symptoms, he is not competent to provide statements regarding the diagnosis of any such disability.

Here, because there is no diagnosis of lung cancer, service connection cannot be granted.  Brammer, 3 Vet. App. 223.  The competent evidence is against a finding of lung cancer at any time relevant to the appeal period.  See McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. 289.  Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied.  38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. 49.


ORDER

Entitlement to service connection for a left arm disability is denied.

Entitlement to service connection for lung cancer is denied.


REMAND

The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal.

In a February 2017 remand, the Board directed the AOJ to obtain a VA examination for the Veteran's left hand.  The examiner was specifically asked to comment on both the medical and lay evidence of record.  In a March 2017 medical opinion, a VA examiner found that a left hand disability was less likely than not incurred in service, as the Veteran had no documented residuals from his in-service hand laceration.  However, the examiner did not comment on the Veteran's contention that he had tenderness in his left hand since service.  See Stegall v. West, 11 Vet. App. 268 (1998) (regarding legal necessity of compliance with previous Board directives).  For this reason, an addendum opinion should be provided on remand.

As well, a March 2017 VA examiner found that the Veteran did not meet the criteria to be diagnosed with a mental disorder.  However, the Veteran's treatment records reflect anxiety during the appellate period.  Therefore, an addendum opinion is needed as to the etiology of this disability.

In August 2017, a medical opinion was provided regarding the etiology of the Veteran's diabetes mellitus.  The examiner stated it was less likely than not that diabetes was incurred in service, as "[m]ost of the genetic risk for type 2 diabetes results from complex polygenic risk factors."  The Board finds this opinion inadequate as it is general in nature and does not offer a clear rationale as to the Veteran's contentions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a new opinion is needed on remand.

The Veteran has argued that his kidney disabilities are related to his diabetes and that his hypertension, in turn, is related to his kidneys.  See November 2017 Brief.  The Board thus finds that the Veteran's claims for service connection for kidney cancer, loss of kidney, and hypertension are inextricably intertwined with the claim for service connection for diabetes mellitus.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  Consideration of the kidney and hypertension claims must be deferred pending the resolution (development and readjudication) of the diabetes claim.

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. The AOJ should secure for association with the record updated (to the present) records of any/all VA treatment the Veteran has received for the issues on appeal.

2. After completing directive (1), the AOJ should return the claims file to the March 2017 VA examiner for an addendum opinion regarding the nature, extent and etiology of the Veteran's current left hand disability.  Based on the record, the examiner should provide a response to the following:

Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's left hand disability is attributable to the Veteran's active serviceļ to include in-service laceration?  The examiner is specifically asked to comment on the Veteran's reports that he has had tenderness in his left hand since service.

Detailed reasons for all opinions should be provided.

3. After completing directive (1), the AOJ should return the claims file to the March 2017 VA examiner for an addendum opinion regarding the nature, extent and etiology of the Veteran's acquired psychiatric disorder.  Based on the record, the examiner should provide responses to the following:

(a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has an acquired psychiatric disorder, to include depression and anxiety, related to service?

(b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has an acquired psychiatric disorder, to include depression and anxiety, that is proximately due to his service-connected disabilities (bilateral feet bursitis and psychophysiological gastrointestinal disorder)?

(c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has an acquired psychiatric disorder, to include depression and anxiety, that has been aggravated by his service- disabilities (bilateral feet bursitis and psychophysiological gastrointestinal disorder)?  Aggravation is an increase in severity beyond the natural progress of the disorder.

Detailed reasons for all opinions should be provided.

(For purposes of this opinion, the examiner should acknowledge that the Veteran's medical records reflect a diagnosis of anxiety during the appellate period.)

4. After completing directive (1), the AOJ should return the claims file to the August 2017 VA examiner for an addendum opinion regarding the nature, extent and etiology of the Veteran's current diabetes mellitus.  Based on the record, the examiner should provide a response to the following:

Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's diabetes mellitus is attributable to the Veteran's active serviceļ to include exposure to chemical cleaners containing methyl ethyl ketone (MEK)?

Detailed reasons for all opinions should be provided.

5. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed.

6. The AOJ should then review the record and readjudicate the claims, performing all additional development deemed necessary.  If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate review.

The appellant 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).



______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs