Citation Nr: 18149768 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-22 671 DATE: November 13, 2018 ORDER Entitlement to service connection for a kidney disorder, claimed as due to exposure to contaminated water at Camp Lejeune, is denied. REMANDED Entitlement to service connection for a testicular tumor, claimed as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety and PTSD, is remanded. Entitlement to service connection for a back disorder, including as secondary to a kidney disorder, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran served on active duty at Camp Lejeune, and is presumed to have been exposed to contaminated drinking water. 2. The Veteran’s angiomyolipoma, left kidney, with acute bleed into tumor and surrounding tissue, for which he underwent radical left nephrectomy in August 1992, did not originate in service or manifest until years thereafter, and is not otherwise related to service, to include exposure to contaminated water therein. CONCLUSION OF LAW The criteria for service connection for angiomyolipoma, left kidney, including as a result of exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1978 to June 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2015, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In February 2017, he testified at a Board before the undersigned Veterans Law Judge. A transcript of both hearings is of record. At the Board hearing, the record was held open for an additional 90 days for the Veteran to submit additional evidence. He waived RO consideration of any additional evidence added to his file. The Veteran’s DRO and Board hearing transcripts show he has been awarded disability benefits from the Social Security Administration (SSA). As the Veteran has made no assertion that the SSA records are potentially relevant to his claim of service connection for a kidney disorder (reference to SSA benefits was made in the context of the Veteran’s employability/TDIU claim), remand to obtain SSA records is not necessary as to this issue. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009) (holding that Social Security Administration records need not be obtained if they are not relevant or potentially relevant to a claim). Additional reference to the Veteran’s service connection claim is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s claim that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Service Connection The Veteran claims his angiomyolipoma, left kidney, with acute bleed into tumor and surrounding tissue, for which he underwent radical left nephrectomy in August 1992, is the result of exposure to contaminated water at Camp Lejeune. 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases (including malignant tumors) are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease enumerated in 38 U.S.C. § 1101(a); 38 C.F.R. § 3.309(a) is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). During the pendency of this appeal, effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served at Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). First, it is not in dispute that the Veteran has been diagnosed with angiomyolipoma, left kidney, with acute bleed into tumor and surrounding tissue, for which he underwent radical left nephrectomy in August 1992. Second, the Veteran’s service personnel (and service treatment records (STRs)) show he had periods of service at Camp Lejeune, North Carolina, from November 1978 to January 1981, which is during the relevant time period. Moreover, the January 2014 rating decision concedes that the Veteran’s military records confirm his service at Camp Lejeune during the period of potential exposure and his exposure to contaminated water is presumed for VA compensation purposes. The angiomyolipoma, left kidney, however, is not one of the diseases listed for presumptive service connection. Specifically, although an August 1992 radiology (IVP (intravenous pyelogram) and ultrasound of the kidneys) report notes a “complex mass having solid characteristics” which “would be very suspicious for renal tumor probably renal cell carcinoma;” the subsequent discharge summary notes pathology “reported this to be an angiomyolipoma with hemorrhage into the tumor and surrounding tissues.” The final diagnosis was angiomyolipoma, left kidney, with acute bleed into tumor and surrounding tissues. These records do not show findings of kidney cancer or suggest that the tumor was malignant. Accordingly, presumptive service connection for a malignant tumor as a chronic disease or for kidney cancer due to exposure to contaminated water is not warranted. 3.307, 3.309. Nonetheless, the absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the remaining issue is whether the angiomyolipoma, left kidney, had onset during service or is otherwise related to contaminated water during service. The August 1992 admission report notes the Veteran woke up from sleep with “sudden onset” of left flank pain. There was no history of trauma, no previous history of pain and he reported no history of serious illnesses. Angiomyolipoma, left kidney, was initially diagnosed in 1992, 10 years after the Veteran’s separation from service. Accordingly, it did not have onset during service. The remaining issue, then, is whether the evidence of record supports a relationship to service, including contaminated water. In January 2014, VA obtained an etiological opinion from a physician who was a member of the Subject Matter Expert Panel, Camp Lejeune Contaminated Water Project. The examiner reviewed the relevant medical records and medical literature and opined that the Veteran’s renal angiomyolipoma status post resection was less likely than not (less than 50 percent probability) caused by or a result of his exposure to contained water at Camp Lejeune. The examiner explained that “the Veteran’s risk for development of this tumor approaches the same as the general population. It is most likely that his condition can therefore not be attributed to exposure to contaminated drinking water at Camp Lejeune.” Upon review of the record, the Board finds the preponderance of the evidence is against the claim. The January 2014 VA examiner rendered a negative opinion, with rationale, opining that the Veteran’s renal angiomyolipoma status post resection was not caused by or a result of exposure to contaminated water at Camp Lejeune. As the VA examiner’s opinion reflects familiarity with the record, and includes a rationale with citation to supporting factual data and pertinent medical and scientific literature, the Board finds it to be highly probative evidence in the matter. In the absence of competent evidence to the contrary, the Board finds it persuasive. The Veteran has asserted that his angiomyolipoma, left kidney, is related to exposure to contaminated water during his service at Camp Lejeune. However, the Veteran is not competent to report that his current disorder is related to exposure to contaminated water in service. Particularly where the matter of the health effects of contaminated water at Camp Lejeune are the subject of scientific studies, the Board finds that the question of the relationship between his left kidney angiomyolipoma and water contamination is far outside the realm of lay expertise as it is not capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board notes that the Veteran does not contend that he developed his disability while in service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for a kidney disorder. The appeal in the matter must be denied. REASONS FOR REMAND The Veteran claims service connection for left testicular tumor as a result of exposure to contaminated water at Camp Lejeune, service connection for an acquired psychiatric disorder and a low back disorder as a result of his active duty service and TDIU as a result of his claimed disabilities. Updated Records Initially, it is noted that the record may be incomplete. Specifically, VA treatment records note a history of left testicle removal; however, the records in connection with this procedure have not been obtained and are unavailable for review. During his DRO hearing, the Veteran’s agent asserted the Veteran’s “civilian records” of back treatment would substantiate his claim of service connection for a back disorder due to his military service. These records have also not been obtained. The most recent VA treatment records are dated in July 2014 and these records show the Veteran refused referral to mental health; however, during the Board hearing, the Veteran testified that he is in receipt of ongoing VA mental health treatment. Finally, as noted above, the record shows the Veteran is in receipt of SSA disability benefits. Accordingly, on remand, the Veteran’s claims file should be updated to include all outstanding VA and private treatment records and records from SSA. Testicular Tumor As noted above, the Veteran served on active duty at Camp Lejeune, and is presumed to have been exposed to contaminated drinking water. Although testicular tumor is not a disease legally presumed as service-connected to the Camp Lejeune water contamination (and it is not alleged that the tumor was malignant/cancerous), the Court has held that when service connection cannot be granted on a presumptive basis, VA should still determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). PTSD The Veteran has alleged two stressors in service: (1) Being exposed to gunfire during temporary duty in Turkey in 1979 while searching for a fellow service member in a village (notably, the Veteran recalls being told “the incident did not happen” and being instructed to “not speak of it.”) and (2) running over a man on a his motorcycle while serving in Okinawa, Japan, when he was driving a vehicle moving two oversized fork lifts (the vehicle he was driving was a large “moving machine” and was being escorted by other vehicles). During his DRO hearing, the Veteran identified the injured motorcyclist as an American Marine. During his Board hearing, the Veteran recalled the second incident occurred in August 1981. Review of the record shows that an attempt to verify these stressors has not been accomplished. The Board finds that if there was an accident in Okinawa, it may be documented in military records. The Veteran should be asked to be as narrow as possible with regard to when the alleged accident involving the motorcyclist occurred. Where the time period alleged by the Veteran is longer than the two-month period required by JSRRC (Joint Service Records Research Center), the RO should submit multiple 60-day record searches. Gagne v. McDonald, 27 Vet. 397 (2015). If the JSRRC, or another source, verifies the accident in Okinawa, Japan, records should be obtained if possible (e.g. investigation records) as to whether the Veteran was involved as a driver/part of the group of escort vehicles involved in moving the heavy equipment. Thereafter, if there is verification of either stressor, (e.g. the Veteran was involved in the accident in Okinawa with the motorcyclist), he should be scheduled for an examination to determine if it is as likely as not that he has an acquired psychiatric disability causally related to such stressor. Notably, although VA treatment records show the Veteran declined referral to mental health, these records show assessments of depression and anxiety. The clinician should not consider any alleged stressor that has not been corroborated by competent credible evidence. Back and TDIU Finally, as noted above, it is asserted on behalf of the Veteran that the claim of service connection for a back disorder may be substantiated by his private treatment records. In addition, the claim for TDIU is inextricably intertwined with the service connection claims being remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the issues of service connection for a back disorder and entitlement to a TDIU will be deferred pending completion of the development ordered. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding VA and non-VA treatment records pertinent to the Veteran’s claims, to specifically include (after obtaining any necessary authorizations) complete private medical records in connection with treatment for his back complaints and the removal of his left testicular tumor, and updated VA treatment records. 2. Take appropriate action to locate all decisions and records, including medical records, associated with the Veteran’s claim for SSA disability benefits. If the requested records are not available, or the search for any such records otherwise yields negative results, that fact should be clearly documented in the claims file. 3. Attempt to verify whether there is credible evidence to support the Veteran’s alleged stressors. In addition to any other stressors identified by the Veteran, the RO should attempt to verify an incident in which the Veteran was involved in an accident with a motorcyclist in Okinawa, Japan, in or around August 1981. Such verification efforts should include contacting the National Personnel Records Center (NPRC), the U.S. Army and Joint Service Records Research Center (JSRRC), or any other agency deemed appropriate. Any additional action necessary for independent verification of the alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the RO should notify the Veteran, explain the efforts taken to obtain this information, and describe any further action to be taken. If any described stressor lacks sufficient information for verification purposes, such should be noted in a formal finding. 4. After completion of the development requested in paragraphs 1 and 2, the Veteran should be afforded an examination by an appropriate clinician to determine the nature and likely cause of his testicular tumor, including as due to exposure to contaminated water at Camp Lejeune. Based on an examination and interview of the Veteran and review of the record, the examiner should provide an opinion as to the following: a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that that the Veteran’s left testicular tumor was caused by his presumed exposure to contaminants at Camp Lejeune. While there is no presumptive connection between the left testicular tumor and the exposures at Camp Lejeune, the examiner should provide a medical opinion regarding any direct relationship based on the Veteran’s specific medical history. (b) The examiner should also opine as to whether the Veteran’s left testicular tumor otherwise had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After completion of the development requested in paragraphs 1, 2 and 3, If and Only If, there is competent credible evidence of a verified stressor, the Veteran should be scheduled for an examination to determine if it is as likely as not that he has an acquired psychiatric disability related to such stressor. Based on an examination and interview of the Veteran and review of the record, the examiner should provide an opinion as to the following: a) The examiner should identify with specificity any acquired psychiatric disorder that is currently manifested, or that has been manifested at any time during the appeal period, to include depression and anxiety noted in his VA treatment records. b) If a diagnosis of PTSD is warranted, the examiner should identify the particular stressor(s) upon which the diagnosis is predicated. c) For any acquired psychiatric disorder other than PTSD that is currently shown or that has been manifested at any during the claim period, the examiner should opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such disability was incurred in service. The examiner should provide a complete rationale for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Hughes, Counsel