Citation Nr: 18143371 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 13-22 062A DATE: October 19, 2018 ORDER Entitlement to service connection for residuals of frostbite of fingers, toes, ears, and nose is denied. Entitlement to service connection for left kidney renal cell carcinoma (RCC) is denied. Entitlement to service connection for carotid artery disease is denied. FINDINGS OF FACT 1. The Veteran does not have residuals of frostbite of his fingers, toes, ears, and nose. 2. The Veteran’s diagnosed left kidney RCC did not manifest in service, within the one year presumptive period, or for many years after service. 3. The Veteran does not have a diagnosis of carotid artery disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of frostbite of fingers, toes, ears, and nose have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. 2. The criteria for entitlement to service connection for left kidney RCC have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. 3. The criteria for entitlement to service connection for carotid artery disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1965 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and March 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. As to the Veteran’s frostbite claim, the Board notes that the RO characterized the issue in the November 2012 rating decision and subsequent adjudications as an application to reopen a previously denied claim for service connection, due to the fact that the claim was previously denied in a final March 2010 rating decision. The Board notes, however, that since the time of the March 2010 rating decision, additional relevant service treatment records have been associated with the claims file. Pursuant to 38 C.F.R. § 3.156(c) (2016), the Board finds that, due to the newly submitted service treatment records, the issue must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen previously denied claims. 38 C.F.R. § 3.156(c). The issue has been recharacterized accordingly. The Veteran originally requested a hearing before the Board in his August 2013 substantive appeals; however, he withdrew the hearing requested in March 2015 correspondence. In a May 2018 rating decision by the RO, service connection for posttraumatic stress disorder as secondary to his service-connected back disability was granted, resolving the claim previously on appeal. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for residuals of frostbite for fingers, toes, ears, and nose The Veteran contends that service connection for residuals of frostbite is warranted. Service treatment records (STRs) do not reflect complaint of, treatment, or a diagnosis of any frostbite residual related disabilities. Post-service, in a December 2009 statement, the Veteran reported that he had frostbite in his fingers, toes, ears, and nose. In a March 2011 statement, the Veteran reported that while he was overseas in Germany during service, the doctor informed him that he had a case of frostbite. He reported that the weather got cold. In a January 2013 statement, the Veteran reported that his frostbite was from being in Germany in the extreme cold for so long. There are no post service medical treatment records that reflect complaint of, treatment, or a diagnosis of any residual frostbite disability. Significantly, the Veteran has not complained of frostbite-related symptoms in his fingers, toes, ears, and nose. The weight of the above evidence reflects that the Veteran has not had a frostbite-related disability during the pendency of the claim. While a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”), here the evidence does not reflect any complaint or notation of physical defect of the Veteran’s fingers, toes, ears, and nose as related to frostbite. As the Veteran has not had a frostbite-related disability, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (“Without a current disability, of course, there can be no service connection and, thus, no disability compensation”). The Board notes that the duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § § 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A VA examination was not obtained in connection with the claimed service connection claims decided herein. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary in order to adjudicate the Veteran’s claim of entitlement to service connection for residuals of frostbite. As indicated in the discussion above, the evidence does not show a current diagnosis of a frostbite-related disability, or persistent or recurrent symptoms thereof, and there is no evidence indicating that a frostbite-related disability may be associated with service. To the extent that the Veteran has asserted that he has frostbite residuals that are related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). The Board notes that it has considered the claim broadly, but there has been no diagnosis or other symptoms related to frostbite residuals of the fingers, toes, ears, and nose. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for residuals of frostbite of the fingers, toes, ears, and nose. The benefit of the doubt doctrine is not for application, and entitlement to service connection for is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for left kidney RCC STRs do not reflect complaint of, treatment, or a diagnosis of a left kidney disability. Post service, a VA treatment note reflects that in July 2012, a two-centimeter lesion was found in the superior pole of the left kidney which the doctor noted was concerning for RCC. Subsequently, an August 2012 computed tomography (CT) scan showed cancer of the left kidney. A March 2015 microscopic examination revealed sarcomatoid renal cell carcinoma of the left kidney. The Veteran has received continued treatment for his RCC following his diagnosis. In a May 2013 statement, the Veteran reported that a VA doctor told him that his left kidney cancer could be connected to his service in Germany. Upon review of the evidence of record, the Board finds that service connection for left kidney RCC is not warranted. Initially, the Board finds that the Veteran has a current disability as reflected by the August 2012 CT scan and March 2015 microscopic examination. The claim must be denied, however, because the evidence does not establish that there is a relationship between the Veteran’s current left kidney RCC and service; noting that no in-service incurrence of a disease or injury has been competently shown. As noted, no left kidney disability was shown in service nor was such competently and credibly indicated for many years thereafter. The evidence of record first documents a kidney disability in 2012, over forty years after separation from service. Moreover, the Veteran reported that his doctor informed him of his left kidney cancer in 2013 and did not report any symptomatology suggesting left kidney RCC up until his diagnosis. Thus, both the medical and lay evidence reflect that left kidney RCC did not have its onset in service or for many years thereafter. To the extent that the Veteran has opined that his left kidney disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s testimony as to the etiology of his current left kidney disability is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Additionally, the Board finds that no examination is necessary in order to adjudicate the Veteran’s claim of entitlement to service connection for left kidney RCC. As indicated in the discussion above, although the evidence reflects a current diagnosis of left kidney RCC, the evidence does not reflect persistent or recurrent symptoms of left kidney RCC. Moreover, there is no evidence indicating that a left kidney disability may be associated with service other than conclusory generalized lay statements of the Veteran, which are insufficient to warrant a VA examination. Waters v. Shinseki, 601 F.3d at 1278-79. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for left kidney RCC. The benefit of the doubt doctrine is not for application, and entitlement to service connection for left kidney RCC is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for carotid artery disease STRs do not reveal complaint of, treatment, or a diagnosis of carotid artery disease disability. Post-service, VA medical professionals specifically did not find carotid bruits in November 2013, October 2014, April 2015, and May 2016 on cardiovascular examination. There are no other medical treatment records that reflect complaint of, treatment, or a diagnosis of carotid artery disease. In a May 2013 statement, the Veteran reported that a VA doctor informed him that his carotid artery disease could be connected to his time in Germany. Upon review of the evidence of record, the Board finds that service connection for carotid artery disease must be denied. The weight of the above evidence reflects that the Veteran has not had a diagnosis of carotid artery disease during the pendency of the claim. VA treatment records reflect specific findings of no carotid disease. While a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”), here the evidence does not reflect any complaint or notation of physical defect of the Veteran’s cardiovascular system. As the Veteran has not had a carotid artery disability, entitlement to service connection is not warranted. Palczewski, 21 Vet. App. at 181 (“Without a current disability, of course, there can be no service connection and, thus, no disability compensation”). Additionally, the Board finds that no examination is necessary in order to adjudicate the Veteran’s claim of entitlement to service connection for carotid artery disease. As indicated in the discussion above, the evidence does not show a current diagnosis of carotid artery disease, or persistent or recurrent symptoms thereof, and there is no evidence indicating that this disability may be associated with service. To the extent that the Veteran has asserted that he has carotid artery disease that is related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Shinseki, 601 F.3d 1274. The Board notes that it has considered the claim broadly, but there has been no diagnosis or other symptoms related to a cardiovascular disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for carotid artery disease. The benefit of the doubt doctrine is not for application, and entitlement to service connection for carotid artery disease is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel