Citation Nr: 18159110 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 10-22 604 DATE: December 18, 2018 ORDER Entitlement to service connection for a liver disability (claimed as liver cysts), to include as secondary to service-connected disability, is denied. REMANDED Entitlement to service connection for a kidney disorder, to include as secondary to service connected disability, is remanded. FINDINGS OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a liver disability. CONCLUSIONS OF LAW The criteria for service connection for a liver disability (claimed as liver cysts), to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1966 to September 1968, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA). The Veteran testified during a videoconference hearing in September 2011. A transcript of the hearing has been associated with the record. In September 2018, the Veteran was notified that the Veterans Law Judge who conducted his hearing was no longer employed by the Board and was informed of his right to another hearing. However, the Veteran did not respond within the allotted time or at all. Therefore, the Veteran’s right to another hearing is deemed waived. These issues were previously before the Board in November 2015. At that time, the Board remanded the issues for additional development. The record reflects substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (citing Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring upon an appellant the right to substantial compliance with the Board’s order)). Service Connection The Veteran seeks entitlement to service connection for a liver disorder, to include as secondary to service-connected disability. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection on a direct-incurrence basis, the evidence 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Whether these requirements are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Ultimately, it is the appellant’s burden “to present and support a claim for benefits under laws administered by the Secretary.” See 38 U.S.C. § 5107(a). 1. Entitlement to service connection for a liver disability (claimed as liver cysts), to include as secondary to a service connected disability, is denied. The Veteran contends that he has a liver disability, namely liver cysts, that are related to service, including presumed exposure to herbicide agents like Agent Orange, or are caused or aggravated by service-connected disability. The initial element for service connection is demonstration of current disability. The Board concludes that, while the Veteran has a current diagnosis of liver cysts, he has not been shown to have a current liver disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1330-33 (Fed. Cir. 1997); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran received a VA examination in July 2018. The July 2018 examiner reviewed the claims file and evaluated the Veteran. She determined that, while the Veteran has liver cysts, they were noncancerous and have not resulted in any abnormality of liver function. She added that he is not on continuous medication and does not have any signs or symptoms attributable to a chronic or infectious liver condition or disease. It was specifically noted that the cysts were stable, which was the natural course of a cyst, and were not changed in size with chemotherapy/radiation therapy, as one would expect if it was a cancer related to his lung cancer. The Veteran has not presented any evidence to the contrary and he otherwise lacks the necessary knowledge, training and expertise to render a competent statement on the impact of his liver cysts. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Because the evidence does not show a current liver disability which has resulted in abnormal liver function, service connection for a liver disability is denied. See Brammer, 3 Vet. App. at 225. REASONS FOR REMAND 1. Entitlement to service connection for a kidney disorder, to include as secondary to service-connected disability, is remanded. In November 2015, the Board remanded this claim, in significant part, to obtain a VA medical examination and opinion. The Board noted that the Veteran is presumed to have been exposed to herbicide agents during his service in the Republic of Vietnam, including Agent Orange. While kidney stones and glomerulonephritis are not diseases deemed presumptively associated with herbicide exposure, pursuant to 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307(a)(6), 3.309(e), a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160 (1998). Given the Veteran’s presumed exposure to herbicide agents during service, including Agent Orange, and the Veteran’s contention his kidney disorder is due to service, the Board remanded the issue to obtain a medical opinion addressing whether the Veteran’s kidney disorder is due to service, including exposure to herbicide agents such as Agent Orange. The Board also remanded this claim to obtain a medical opinion addressing aggravation. The Board noted that, beginning in March 2012, the Veteran was scheduled to undergo chemotherapy and radiation for his service-connected lung cancer. A February 2012 note from the Veteran’s physician stated that chemotherapy includes the risk of nephrotoxicity. The Veteran was treated with chemotherapy drugs in March 2012 and his private treatment records showed that he was diagnosed and treated for kidney stones, urinary retention, and renal failure. A May 2012 CT scan of the thorax revealed a large calculus in the upper pole of the right kidney and a small cyst in the upper pole of the left kidney. Given the indication that the Veteran’s kidney disorder may have been aggravated by chemotherapy treatment for his service-connected lung cancer, the Board requested a medical opinion on this issue. Specifically, the Board requested an examination and opinion regarding whether any diagnosed kidney disorder was caused or aggravated (chronically worsened beyond the natural progression) by the Veteran’s service-connected lung cancer or chemotherapy treatment related thereto. The Board also requested a discussion of the Veteran’s treatment with chemotherapy and radiation and the medical literature of record indicating that nephrotoxicity is a side effect of chemotherapy. The requested medical opinion was obtained in July 2018 and is inadequate to adjudicate this claim. The clinician provided a general conclusory statement that the Veteran’s kidney condition was not caused by his service-connected lung cancer, and completely failed to address the issue of aggravation. Additionally, the examiner failed to address whether the Veteran’s kidney stones were due to service, including his presumed exposure to herbicide agents. In this regard, she seemingly disregarded without explanation the Veteran’s testimony that he was diagnosed with kidney stones a year-and-a-half after service. For these reasons, the medical opinion is inadequate and another medical opinion must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that “once the Secretary undertakes the effort to provide an examination…he must provide an adequate one.”). As a final note, the Board acknowledges a May 2018 VA Memorandum for Record which states that portions of the Veteran’s claims file, to include service treatment records, have been lost. When service records are unavailable through no fault of a veteran, the Board has a heightened duty to assist, an obligation to explain its findings and conclusions, and an obligation to carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the Veteran testified that he did not have any problems with kidney stones or any type of urinary tract infection or other symptoms that might indicate a kidney disorder during service. He also testified that he was first diagnosed with kidney stones one year-and-a-half after service and that none of his family members, including two brothers who served in Germany, have a kidney stone disorder. Nevertheless, the Veteran’s service treatment records may be relevant and the AOJ should retry to obtain them. Additionally, the AOJ should ask the Veteran to resubmit any medical evidence previously provided to the VA and provide the Veteran with authorization forms so that private medical records can be requested again. The AOJ should take any other appropriate action to reconstruct the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records and service treatment records. 2. Ask the Veteran to resubmit any previously provided medical records. 3. As the Veteran to complete a VA Form 21-4142 for any private physicians and facilities that have evaluated or treated the Veteran for his kidney disorder. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any kidney disorder existing now or at any time during or proximate to the appeal period. The examiner must opine on the following: (a.) Whether it is at least as likely as not that any current kidney disorder, or one existing during or proximate to the appeal period, is related to an in-service injury, event, or disease, including the Veteran’s presumed exposure to herbicide agents such as Agent Orange while in the Republic of Vietnam? Rationale must be provided for the opinion proferred. In rendering the requested opinion, the examiner should reconcile his/her opinion with the Veteran’s assertion that kidney stones developed within a year-and-a-half after separating from service, and that he has had recurring kidney stones. (b.) Whether it is at least as likely as not that any current kidney disorder, or one existing during or proximate to the appeal period, is proximately due to the Veteran’s lung cancer or chemotherapy and/or radiation treatment related thereto? Rationale must be provided for the opinion proferred. In rendering the requested opinion, the examiner should reconcile his/her opinion with medical literature indicating that nephrotoxicity is a side effect of chemotherapy. (c.) Whether it is at least as likely as not that any current kidney disorder, or one existing during or proximate to the appeal period, is aggravated (chronically worsened beyond the natural progression) by the Veteran’s lung cancer or chemotherapy/radiation treatment related thereto? Rationale must be provided for the opinion proferred. In rendering the requested opinion, the examiner should reconcile his/her opinion with medical literature indicating that nephrotoxicity is a side effect of chemotherapy. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel