Citation Nr: 1800734 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for renal cell carcinoma, to include as due to herbicide agent exposure. 2. Entitlement to service connection for respiratory cancer, to include as due to herbicide agent exposure. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Marine Corps from January 1969 to January 1971, including service in the Republic of Vietnam. The Veteran's commendations include the Purple Heart Medal. Unfortunately, the Veteran died in November 2012. The appellant is the Veteran's surviving spouse and has been found by VA to be the appropriate substitute in this case. 38 U.S.C. § 5121A (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In October 2015, the Board remanded the case in order for the RO to address and adjudicate the issue of eligibility of the Veteran's widow for substitution. In April 2016, the Board remanded the case for a second time for further development of the record to include a VA medical opinion. The Board finds there has been substantial compliance with its April 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran served at U.S. Marine Corps Base Camp Lejeune, North Carolina (Camp Lejeune) from August 1970 to January 1971; thus, the Veteran was exposed to contaminated water during his active military service. 2. The Veteran had renal cell carcinoma, status post radical left nephrectomy, prior to his death, a disease presumed to be associated with Camp Lejeune water contaminants under VA regulatory criteria. 3. Resolving any reasonable doubt in the Veteran's favor, the competent medical evidence indicates that the Veteran's respiratory cancer was due to his renal cell carcinoma. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for renal cell carcinoma, status post radical left nephrectomy have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for respiratory cancer, secondary to service-connected renal cell carcinoma, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. The Board is granting service connection for renal cell carcinoma and respiratory cancer, constituting a full grant of the benefit sought on appeal. As there remains no aspect of the claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis through (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). During the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases, including kidney cancer, that are associated with contaminants present in the water supply at Camp Lejeune. 82 Fed. Reg. 4184-4185 (Jan. 13, 2017) (codified at 38 C.F.R. §§ 3.307, 3.309). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). A Veteran who had active duty service in Republic of Vietnam from January 9, 1962 to May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. 38 C.F.R. 3.307(a)(6). If a veteran was exposed to an herbicide agent during active service, certain diseases, such as respiratory cancers, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). However, "[p]resumptive service connection may not be established under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309(e) as being associated with herbicide exposure, if the cancer developed as the result of metastasis of a cancer which is not associated with herbicide exposure." VAOPGCPREC 18-97 (May 2, 1997); Darby v. Brown, 10 Vet. App. 243, 246 (1997) (presumption of service connection for lung cancer was rebutted by medical evidence showing that the stomach was the primary site of the cancer, which metastasized to the lungs); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F. 3d. 1239 (Fed. Cir. 1997); cert den., 522 U.S. 1151 (1998) (presumptive service connection refers to the primary cancer site and not a metastatic site). Entitlement to Service Connection for Renal Cell Carcinoma The appellant asserts that the Veteran's renal cell carcinoma, or kidney cancer, was caused by exposure to contaminated drinking water at Camp Lejeune. The Veteran's service treatment records (STRs) demonstrate that the Veteran was stationed at Camp Lejeune on active duty with the Eighth Marine Regiment, Second Marine Division, from August 1970 until his release from active duty in January 1971. The post-service medical evidence reflects that the Veteran was diagnosed in July 2011 with kidney cancer, which is included on the list of diseases associated with exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f). Further, he underwent a left radical nephrectomy to remove the kidney in September 2011; therefore, kidney cancer manifested to a degree of at least 10 percent since service separation. 38 C.F.R. § 4.115b, Diagnostic Code 7528 (malignant neoplasms of the genitourinary system). Based on the above, the Board finds that presumptive service connection for kidney cancer, as a disease associated with exposure to contaminants in the water supply at Camp Lejeune under the regulatory provisions at 38 C.F.R. § 3.309(f), is warranted. In summary, since VA has amended 38 C.F.R. §§ 3.307 and 3.309 to establish a presumption of service connection for certain diseases associated with exposure to contaminants in the water supply at Camp Lejeune, and has included kidney cancer as one such disease, the Board finds that under the newly amended regulations, the Veteran is entitled to service connection for renal cell carcinoma on a presumptive basis as due to such exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(7); 3.309(f); 82 Fed. Reg. 4184. The Board acknowledges that a VA examiner in June 2016 rendered a negative nexus opinion as to whether the Veteran's renal cancer was caused by his military service. However, because the Board is granting the Veteran's claim for service connection on a presumptive theory of entitlement under 3.309(f) (diseases associated with exposure to contaminants in the water supply at Camp Lejeune), there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Moreover, the negative evidence is not sufficient to rebut the presumption of service connection in this case. Entitlement to Service Connection for Respiratory Cancer The appellant asserts that the Veteran's respiratory cancer was caused by exposure to herbicide agents during his service in Vietnam. As noted above, in order to establish service connection for respiratory cancer under the presumption set forth under 38 C.F.R. § 3.309(e), such cancer must be a primary cancer. Here, the Veteran's respiratory cancer was noted in the VA treatment records dated August and September 2011, as well as the June 2016 VA medical opinion, to be metastatic to the primary renal cell carcinoma. Therefore, entitlement to service connection on a presumptive basis is not warranted. Ramey, 9 Vet. App. at 44. However, while the June 2016 VA examiner opined that the Veteran's medical records reveal that he did not have a primary cancer of the lung, the examiner stated that the Veteran's respiratory cancer "was due to metastasis from the renal cell carcinoma." Accordingly, the Board finds that the examiner's statement establishes that the Veteran's respiratory cancer was due to his renal cell carcinoma. Therefore, since the Board grants herein service connection for renal cancer on a presumptive basis, the June 2016 examiner's statement establishes a direct correlation between the Veteran's renal cancer and his respiratory cancer, which supports service connection for respiratory cancer on a secondary basis. As noted above, the grant of service connection on a secondary basis under 38 C.F.R. § 3.310 (disabilities proximately due to service-connected disease), renders moot all other theories of service connection, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Resolving all reasonable doubt in the appellant's favor, and in light of the above, the Board finds that service connection for the Veteran's respiratory cancer, secondary to renal cell carcinoma, is also warranted. ORDER Service connection for renal cell carcinoma is granted. Service connection for respiratory cancer is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs