Citation Nr: 1806092 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-15 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for cancer of the left leg. 2. Entitlement to service connection for lymphedema associated with cancer of the left leg. 3. Entitlement to service connection for a right kidney condition. 4. Entitlement to service connection for basal cell carcinoma. 5. Entitlement to service connection for nodules and cysts. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Original jurisdiction is held by Louisville, Kentucky. 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 entitlement to service connection for lymphedema, nodules, and cysts 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 does not have a current diagnosis of cancer of the left leg and did not manifest cancer of the left leg during the pendency of the appeal. 2. A medical nexus has not been established between an in-service incurrence and a current diagnosis of a kidney condition, and the a current kidney condition such as kidney calculi did not manifest within one year of separation of service; and continuity of symptomology since separation of service has not been established; and the Veteran has not been diagnosed with a condition, such as kidney cancer, that is presumed related to toxic exposure at Camp Lejeune. 3. The Veteran does not have a current diagnosis of basal cell carcinoma and did not manifest basal cell carcinoma during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for cancer of the left leg have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for service connection for a right kidney condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 3. The criteria for service connection for basal cell carcinoma have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran initially requested a personal hearing before the Board, but the Veteran subsequently withdrew his hearing request. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Service Connection The Veteran contends that he is entitled to service connection for multiple claimed disabilities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, 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 C.F.R. § 3.303. Service connection can also be established through application of statutory presumptions, including for chronic diseases, like calculi of the kidney and renal disease, that become manifest to a compensable degree within one year of separation of service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. Additionally, service connection can be established on a presumptive basis for diseases associated with toxic exposure due to service at Camp Lejeune such as kidney cancer. Left Leg At issue is whether the Veteran is entitled to service connection for cancer of the left leg. Specifically, the Veteran claims that his condition was due to toxic exposure while he was stationed at Camp Lejeune. VA has conceded that that the Veteran did incur toxic exposure during his period of service at Camp Lejeune. Unfortunately, the weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran's service treatment records are silent for reports of or treatment for cancer of the left leg. In a service separation examination, the Veteran's lower extremities were evaluated as normal, and the Veteran was not diagnosed with cancer. The Veteran's treatment records indicate that the Veteran was diagnosed with cancer of the left leg in 2008, and that the Veteran subsequently underwent a resection and radiation therapy. The Veteran underwent a VA examination in October 2014. The examiner noted that the Veteran was previously diagnosed with leimyosarcoma and that he underwent a resection in March 2008 followed by seven weeks of radiation therapy. The examiner also noted that a computed tomography (CT) and a magnetic resonance imaging (MRI) in May 2008 did not present evidence of metastasis. The examiner indicated that the Veteran manifested identified risk factors associating with developing sarcomas including aging and strong familial history. The weight of the evidence indicates that the Veteran does not have a current manifestation of cancer of the left leg and did not manifest cancer of the left leg during the pendency of the appeal. The Veteran quite clearly manifested cancer of the left leg in 2008, but the Veteran also underwent extensive treatment; which by all accounts was a complete success. As such, the Veteran's cancer of the left leg resolved in 2008, and the Veteran was no longer manifesting cancer of the left leg when he first filed a claim for service connection in September 2013. Additionally, the Veteran's cancer of the left leg has not and did not manifest since September 2013. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). As such, without a current disability or a disability during the pendency of the appeal, the Veteran lacks the evidence necessary to substantiate his claim for service connection. Right Kidney At issue is whether the Veteran is entitled to service connection for a right kidney condition. Specifically, the Veteran claims that his condition was due to toxic exposure while he was stationed at Camp Lejeune. VA has conceded that that the Veteran did incur toxic exposure during his period of service at Camp Lejeune. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran's service treatment records are silent for reports of or treatment for a kidney condition. In a service separation examination, the Veteran's abdomen and viscera were evaluated as normal, and the Veteran was not diagnosed with a kidney condition. The Veteran's treatment records indicate that the Veteran began to manifest a renal cyst in May 2014. The Veteran underwent a VA examination in October 2014. The examiner noted that a CT identified a right renal cystic mass and non-obstructive uropathy nephrocalcinosis. The examiner diagnosed the Veteran with a right renal cyst. The examiner opined that it was less likely than not that the Veteran's right renal cyst was caused by toxic exposure while the Veteran was stationed at Camp Lejeune. The examiner also indicated that renal cysts most often occur in patients 50 years or older. The weight of the evidence indicates that the Veteran is not entitled to service connection for a right kidney condition. The Veteran clearly has a current diagnosis of a right kidney cyst, and the Veteran clearly incurred toxic exposure while stationed at Camp Lejeune. Nevertheless, the Veteran has not been diagnosed with a condition, such as kidney cancer, that is presumed to have been related to toxic exposure at Camp Lejeune. Additionally, a VA examiner opined that the Veteran's kidney cyst was unrelated to toxic exposure at Camp Lejeune. The Veteran's was not diagnosed with a renal condition during a period of service or upon separation from service. The Veteran's kidney cyst did not manifest until decades after separation of service. A VA examiner indicated that renal cysts most often occur in patients over the age of 50; which in turn suggests that the Veteran's kidney cyst is related to age. Finally, the record does not contain a positive medical opinion suggesting a medical nexus between a current diagnosis of a kidney condition and an in-service incurrence including toxic exposure at Camp Lejeune. Here, the weight of the probative evidence of record simply fails to demonstrate a medical link between a current diagnosis and an in-service incurrence; of which there is also no record of a diagnosis within one year of separation or continuity of symptomology since separation of service. Additionally, the evidence of record does not establish that the Veteran has manifested a disease associated with toxic exposure at Camp Lejeune. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a right kidney condition is denied. Basal Cell Carcinoma At issue is whether the Veteran is entitled to service connection for basal cell carcinoma. Specifically, the Veteran claims that his condition was due to toxic exposure while he was stationed at Camp Lejeune. VA has conceded that that the Veteran did incur toxic exposure during his period of service at Camp Lejeune. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran's service treatment records are silent for reports of or treatment for basal cell carcinoma. In a service separation examination, the Veteran's head, face and skin were evaluated as normal, and the Veteran was not diagnosed with cancer. A January 2008 VA treatment record indicates that the Veteran had a three month history of basal cell carcinoma (since approximately October 2007), but that the basal cell carcinoma was excised. The Veteran underwent a VA examination in October 2014. The examiner diagnosed the Veteran with basal cell carcinoma, status post excision. The examiner indicated that the Veteran first manifested basal cell carcinoma in 2008, and there were negative biopsy results on November 29, 2013. The examiner opined that it is less likely than not that the Veteran's basal cell carcinoma was due to toxic exposure at Camp Lejeune. The examiner further indicated that the Veteran's basal cell carcinoma was more likely the result of smoking tobacco for over 40 years and presumed sun exposure over the course of the Veteran's life rather than toxic exposure at Camp Lejeune. The weight of the evidence indicates that the Veteran does not have a current manifestation of basal cell carcinoma and did not manifest basal cell carcinoma during the pendency of the appeal. The Veteran quite clearly manifested basal cell carcinoma in 2007 and in 2008, but that the basal cell carcinoma was excised. As such, the Veteran's basal cell carcinoma resolved by 2008, and the Veteran was no longer manifesting basal cell carcinoma when he first filed a claim for service connection in September 2013. Additionally, the Veteran's basal cell carcinoma has not and did not manifest since September 2013. As previously noted, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich. As such, without a current disability or a disability during the pendency of the appeal, the Veteran lacks the evidence necessary to substantiate his claim for service connection. ORDER Service connection for cancer of the left leg is denied. Service connection for a right kidney condition is denied. Service connection for basal cell carcinoma is denied. REMAND Lymphedema The Veteran contends that he is entitled to service connection for lymphedema. The Veteran was previously provided a VA examination in October 2014. The examiner indicated that the Veteran manifested a number of risk factors for cancer of the left leg such as lymphedema. The examination indicated that lymphedema was a potential risk factor for the Veteran's cancer of the left leg, but the examination did not reveal the etiology of the lymphedema itself. Once VA undertakes the effort to provide an examination, the Veteran must be provided an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). In discussing the condition of lymphedema (a condition for which the Veteran was claiming service connection) without discussing the ultimate etiology of the condition, the Board cannot provide a fully informed evaluation of the Veteran's claims for service connection. Green v. Derwinski, 1 Vet. App. 121 (1991). Normally, the Board would also remand the issue of entitlement to service connection for cancer of the left leg as well as the etiology of the cancer of the left leg is intertwined with the etiology of lymphedema. Harris v. Derwinski, 1 Vet. App. 180 (1991). As discussed above however, the Veteran is procedurally barred from service connection for cancer of the left leg regardless of its etiology as it did not manifest during the pendency of his appeal. See Degmetich. Nodules and Cysts The Veteran contends that he is entitled to service connection for nodules and cysts. The Veteran has filed multiple claims for conditions that result in nodules and cysts over his body. Additionally, the Veteran's treatment records memorialize medical conditions that could be characterized as resulting in nodules or cysts that have not been recognized as claims. It is, therefore, unclear exactly what diagnosis the claim for service connection for nodules and cysts is referring to, and whether it has or has not been adjudicated by this Board decision or has or has not been adequately developed. This is sufficient to trigger VA's duty to assist, and this matter must be remanded in order to provide the Veteran with a VA examination in order to determine what conditions the Veteran is referring to in his claim for service connection for nodules and cysts. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Arrange to provide the Veteran with a VA examination in order to answer the following questions: 1a. Is it at least as likely as not (50 percent or more) that a medical nexus exists between a current diagnosis of lymphedema and an in-service incurrence to include toxic exposure at Camp Lejeune? Why or why not? 1b. Please identify what if any conditions the Veteran has that has resulted in nodules and cysts as well as over what period of time these conditions have manifests. 1c. Is it at least as likely as not (50 percent or more) that a medical nexus exists between any disorder identified in answering the previous question and an in-service incurrence to include toxic exposure at Camp Lejeune? Why or why not? 2. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs