Citation Nr: 18142343 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-31 021A DATE: October 15, 2018 ORDER The appeal for the claim for service connection for posttraumatic stress disorder (PTSD) is dismissed. The appeal for the claim for service connection for bilateral hearing loss is dismissed. The appeal for the claim for service connection for tinnitus is dismissed. The appeal for the claim for an increased disability rating for residuals of prostate cancer is dismissed. New and material evidence having been received, the claim for entitlement to service connection for kidney/renal cancer is reopened. Service connection for kidney/renal cancer is granted. Service connection for metastatic brain cancer is granted. Service connection for metastatic cancer of the spine is granted. Service connection for hypertension (HTN) is granted.   REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In July 2018, prior to the promulgation of a decision in the appeal, the appellant, through her attorney, notified VA at her video conference Board hearing at the Regional Office (RO) that she wished to withdraw her appeal for the claims of entitlement to service connection for PTSD, bilateral hearing loss and tinnitus, as well as the claim for an increased disability rating for residuals of prostate cancer. 2. A July 2006 rating decision denied service connection for soft tissue sarcoma of the kidney on the basis that the evidence did not show that the disability had its onset in service or was otherwise related to service or any incident therein, including exposure to herbicide agents; the Veteran did not appeal the decision and VA did not actually or constructively receive new and material evidence within one year of its issuance. 3. Evidence received since the time of the final July 2006 decision is new and relates to an unestablished fact necessary to substantiate the claim seeking service connection for kidney/renal cancer. 4. The Veteran had qualifying service at Camp Lejeune and was diagnosed with kidney/renal cancer. 5. The Veteran’s metastatic brain and spinal cancer were proximately due to his service-connected kidney/renal cancer. 6. The evidence is at least in equipoise as to whether the Veteran’s hypertension (HTN) had its onset during his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant for service connection for PTSD have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal by the appellant for service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal by the appellant for service connection for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal by the appellant for an increased disability rating for residuals of prostate cancer have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The July 2006 rating decision that denied a claim for service connection for the Veteran’s kidney/renal cancer is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence has been received, and the claim for service connection for the Veteran’s kidney/renal cancer is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for kidney/renal cancer have been met. 38 U.S.C. § §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. The criteria for service connection for metastatic brain cancer have been met. 38 U.S.C. § §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 9. The criteria for service connection for metastatic cancer of the spine have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 10. The criteria for service connection for HTN have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to July 1989. The Veteran died in August 2010. The appellant is the Veteran’s surviving spouse. The appellant filed a request for substitution of the claimant in September 2010 for the Veteran’s claims pending before the Board. Although the agency of original jurisdiction (AOJ) did not formally address the appellant’s request for substitution for the pending claims, it is clear from the subsequent development and adjudication of the claims, that the AOJ accepted the appellant’s request for substitution as the claimant for the purposes of all claims that were pending at the date of the Veteran’s death, pursuant to 38 U.S.C. § 5121A. The Board notes that the AOJ construed a March 2010 report of contact indicating that the Veteran had been hospitalized and that his cancer had metastasized to his brain as a claim for service connection for brain cancer. The Board finds that this claim can also be reasonably construed as a petition to reopen his previously denied claim for service connection for kidney/renal cancer. In July 2018, the appellant testified before the undersigned Veterans Law Judge (VLJ) during a Board hearing at the AOJ. A transcript of the hearing is of record. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, at her July 2018 Board hearing at the RO, through her authorized attorney, withdrew her appeal with regard to the claims for service connection for PTSD, bilateral hearing loss and tinnitus, as well as a claim for an increased disability rating for residuals of prostate cancer. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal regarding these issues and they are dismissed. New and Material Evidence to Reopen the Claim for Service Connection for Renal Cancer Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). During the course of the appeal, the appellant contends that the Veteran’s renal cancer metastases to the spine and brain were the result of his exposure to contaminated water while stationed at Camp Lejeune, North Carolina. The claim for service connection for kidney cancer, identified as soft tissue sarcoma, was originally denied in July 2006 based on a finding that there was no evidence of the disability in service or that it was caused by his service or any incident therein, including his conceded exposure to herbicide agents during his service in the Republic of Vietnam. The Veteran did not appeal the determination of this issue and VA did not actually or constructively receive new and material evidence within a year of the rating decision. Therefore, the July 2006 decision is final as to the denial of service connection for kidney cancer. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Thereafter, the report of the Veteran’s metastatic brain cancer in March 2010 was construed by the AOJ as a claim for service connection. This developed claim is further construed by the Board to be a petition to reopen the claim for the primary kidney/renal cancer as the Veteran submitted a signed authorization and consent to release information to VA regarding private treatment for cancer and a brain tumor. Additionally, the informal claim indicated that doctors believed the Veteran’s cancer had metastasized to the brain. A January 2011 rating decision, in denying service connection for both metastatic brain and spinal cancer, identified renal cancer as the underlying primary cancer and essentially declined to reopen the claim of service connection for renal cancer. However, regardless of the RO’s determination, the Board must consider whether new and material evidence has been received to reopen the claim of entitlement to service connection for kidney/renal cancer. Jackson v. Principi, 265 F.3d 1366, 1369; Barnett v. Brown, 83 F.3d 1380, 1383. The evidence of record at the time of the July 2006 decision consisted of the Veteran’s service treatment records (STRs) and post-service private treatment records indicating a renal mass was surgically removed in January 2006. The pathology report showed a diagnosis of malignant spindle cell neoplasm, sarcomatoid carcinoma arising in renal cell carcinoma, conventional type. The Veteran underwent a left kidney radical nephrectomy. The evidence associated with the claims file after the January 2006 decision includes private treatment records indicating renal metastases to the brain as early as March 2010 and to the back as early as July 2010. Also added to the record in June 2012, was the appellant’s written statement in support of the claim, noting that the Veteran’s renal cancer should be considered as a presumptive disease due to his exposure to contaminated water at Camp Lejeune. The appellant noted that he had been assigned to Camp Lejeune during the 1970s and 1980s. The appellant also testified that the Veteran’s metastatic renal cancer has been presumptively associated with exposure to contaminated water at Camp Lejeune during her July 2018 hearing. The private medical records indicating renal cancer metastases and the appellant’s written contentions and hearing testimony are new, in that they were not previously of record. They further provide evidence regarding the possibility that the Veteran’s kidney/renal cancer is etiologically linked to his service and presumptively related to his exposure to contaminated water at Camp Lejeune. Therefore, as the lack of credible and competent evidence that the Veteran’s renal cancer was caused by his service or any incident therein was the basis for the denial of the claim in the prior decision, this new evidence clearly relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. New and material evidence has been received to reopen the claim for service connection for the Veteran’s metastatic renal cancer, and reopening the claim is warranted. 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Kidney/Renal Cancer For veterans who are presumed to have been exposed to contaminants in the water supply while serving at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987, VA has established a presumption of service connection for kidney cancer. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). In this case, the medical evidence shows that the Veteran was diagnosed with sarcomatoid carcinoma arising in conventional type renal cell carcinoma in January 2006, with metastases to the back noted in July 2010 and to the brain in May 2010. Thus, the evidence shows that the Veteran had renal cell carcinoma that became manifest to a degree of at least 10 percent after his service. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The evidence also indicates that the Veteran was stationed at Camp Lejeune for more than 30 days while on active duty from 1968 to 1987, specifically, service treatment records (STR) show treatment at Camp Lejeune from March 1982 to January 1984, and again in August 1985. The Board therefore concedes the Veteran’s exposure to contaminated water at Camp Lejeune. As such, under the newly amended 38 C.F.R. § 3.307 and 3.309, entitlement to presumptive service connection for renal cell carcinoma is warranted in this case. The Board acknowledges a June 2013 VA opinion from a member of an expert panel regarding Camp Lejeune Contaminated Water Project that found it less likely as not that the Veteran’s sarcomatoid renal cell carcinoma with metastases was caused by or the result of his exposure to contaminated water at Camp Lejeune. The physician noted that sarcomatoid renal cell carcinoma is a rare neoplasm, constituting about 1 to 3 ½ percent of all kidney carcinomas and a subset of other more common cancers. The clinician noted that there was limited or suggestive evidence for the identified Camp Lejeune contaminants causing renal cancer, although they had done so in an experiment on male rats at the maximum tolerated doses. The physician further opined that the potential exposure of soldiers at Camp Lejeune was low while medical literature indicates that tobacco smoking was a well-established risk factor for the development of renal cancer. However, given the more recent amendments to 38 C.F.R. §§ 3.307 and 3.309, the Veteran’s renal cancer is presumed to be related to his exposure to contaminated water at Camp Lejeune, and the Board finds that the earlier opinion evidence is not sufficient to rebut the presumptive provisions of §§ 3.307, 3.309. Based on the foregoing, the Board finds that service connection for kidney/renal cancer is warranted. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). 2. Metastatic Brain and Spinal Cancers. A May 2010 private CT scan of the Veteran’s head revealed right parietal metastasis. While a May 2010 MRI of the lumbar spine was negative for metastatic disease, later July 2010 and August 2010 private treatment records indicate that he was undergoing radiation therapy for metastases to the spine and brain. The Board concludes that the Veteran was diagnosed with both brain and spinal cancers that treatment records overwhelmingly show were metastases of his kidney/renal cancer, for which service connection is being granted. As the medical evidence of record provides probative evidence that the Veteran’s metastatic brain and spinal cancers were proximately due to or the result of his service-connected kidney/renal cancer, service connection for brain and spinal cancers as secondary to kidney/renal cancer is warranted. See 38 C.F.R. §§ 3.102, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. HTN. The appellant and her attorney contend that the Veteran’s HTN had its onset during his active duty service. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including HTN, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board finds that the Veteran had diagnosed HTN during the pendency of the claim. His private treatment records show a diagnosis as early as May 2000, and a December 2005 treatment record notes he had a 10-year history of HTN. The Veteran’s STRs show he frequently had elevated blood pressure values. A November 1986 report of medical history indicates he had a history of high or low blood pressure. A December 1988 STR noted he had a past medical history of HTN, which was controlled with a low sodium diet; he was not on any medications. The Veteran’s April 1989 physical examination for retirement shows an assessment of labile HTN, with constant medication. A June 1989 STR again shows an assessment of labile HTN. In light of the foregoing, and with resolution of doubt in the appellant’s favor, the Board is satisfied that the evidence shows the Veteran’s diagnosed HTN had its onset during his active duty service and service connection is warranted. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102. REMANDED The Board cannot adjudicate the TDIU claim at this point. Although service connection is herein granted for the Veteran’s kidney/renal cancer, metastatic brain and spinal cancer and HTN, the initial disability ratings and effective dates the AOJ will assign for the now service-connected disabilities will impact the claim for TDIU. Therefore, the TDIU issue may not be addressed by the Board until the awards of service connection have been implemented by the AOJ. Harris v. Derwinski, 1 Vet. App. 180 (1991).   The matter is REMANDED for the following action: After assigning the initial disability ratings and effective dates for the Veteran’s service-connected kidney/renal cancer, metastatic brain and spinal cancers, and HTN, readjudicate the appellant’s claim for TDIU. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Wells-Green