Citation Nr: 1806565 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-25 041A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for residuals of left kidney cancer. REPRESENTATION Veteran represented by: Stephen J. Wenger, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active duty service from May 1969 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which characterized the issue on appeal as "Whether the decision to deny compensation for cancer of the left kidney was clearly and unmistakably erroneous." The Board is required to review all issues which are reasonably raised from a liberal interpretation of the appellant's substantive appeal. Meyers v. Derwinski, 1 Vet. App. 127 (1991); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, as discussed infra, there have been recent changes to law which affect this case, and under the circumstances the question of whether previous and final RO denials of service connection for left kidney cancer were based on CUE pertain to the issue of the correct effective date for service connection, which is a downstream issue not properly before the Board. The Board has therefore characterized the issue as stated on the cover page of this decision. In August 2016, the Veteran was afforded a hearing at the Central Office before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b) (2012). FINDINGS OF FACT 1. The Veteran had at least 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. 2. The Veteran has residuals of left-sided kidney cancer due to his service. CONCLUSION OF LAW The criteria for service connection for residuals of left-sided kidney cancer have been met. 38 U.S.C. §§ 1110, 1710, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 17.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that service connection is warranted for residuals of left-sided kidney cancer. He argues service connection is warranted, in part, based on the presumptions for veterans who served at Camp Lejeune, and who are presumed to have been exposed to contaminated drinking water. In April 2003, the Veteran initially filed his claim. In July 2003, the RO denied the claim. In February 2004, the RO again denied the claim. In each case, there was no appeal, and the RO's decision became final. See 38 U.S.C. § 7105(c). In September 2013, the Veteran filed to reopen his claim. It was argued that the RO's previous and final denials of the claim were based on clear and unmistakable error (CUE), that new and material evidence had been presented to reopen the claim, and that service connection was warranted based on the Veteran's presumed exposure to Agent Orange (based on service in the Republic of Vietnam), or, in the alternative, that service connection is warranted based on the presumptions for veterans who served at Camp Lejeune. See e.g., Veteran's representative's claim, received in September 2013. In December 2013, the RO denied the claim; the RO characterized the issue on appeal as "Whether the decision to deny compensation for cancer of the left kidney was clearly and unmistakably erroneous." The Veteran appealed. The July 2014 statement of the case shows that the RO indicated that the Veteran's claim had been reopened, but that the RO determined that its previous and final decisions denying the claim were not based on CUE, and that service connection is not warranted on any basis. For the reasons explained below, the Board will consider the claim on a de novo basis: In 2012, Congress enacted legislation authorizing VA to provide medical services for 15 specific illnesses to certain veterans as well as their eligible family members, who were stationed at Camp Lejeune from January 1, 1957, to December 31, 1987. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, § 102, Pub. L. 112-154, 126 Stat. 1165 (2012) (codified at 38 U.S.C. § 1710). Effective September 24, 2014, VA amended its regulations in order to implement the statutory mandate that VA provide health care to certain veterans who served at Camp Lejeune for at least 30 days during the period beginning on January 1, 1957, and ending on December 31, 1987. See 79 Fed. Reg. 57,410 (Sept. 24, 2014). The applicable regulation requires VA to furnish hospital care and medical services related to treatment of esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage, scleroderma, neurobehavioral effects, and non-Hodgkin's lymphoma. 38 C.F.R. § 17.400 (2017). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases found to be associated with contaminants present in the water supply at Camp Lejeune. As amended, 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin's lymphoma; and, Parkinson's disease (emphasis added). When a provision of law or regulation creates a new basis of entitlement to veterans' benefits through the liberalization of the requirements for entitlement to benefits, a claim under the new law is a claim separate and distinct from the claim previously denied prior to the liberalizing law or regulation. See Spencer v. Brown, 4 Vet. App. 283 (1993); aff'd 17 F. 3d 368 (Fed. Cir. 1994). In such a case, there is no attempt to reopen the finally denied claim; rather, a different claim is presented for adjudication. Id. at 289. Establishment of presumptive service connection for kidney cancer based on exposure to contaminated water at Camp Lejeune is a liberalizing act. Id. Given the foregoing, the Veteran's claim must considered on a de novo basis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. Under 38 C.F.R. § 3.307 (a)(7) "certain diseases have been associated with exposure to contaminants in the water supply at Camp Lejeune" (i) For the purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953, and ending on December 31, 1987. 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). 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. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records. 38 C.F.R. § 3.307 (a)(7)(iii); see also VA's Adjudication Procedure Manual (VBA Manual M21-1), III.iii.2.E.7.a. Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. § 101 (24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in §3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307 (a)(7)(iv). Under 38 C.F.R. §3.309 (f) "disease associated with exposure to contaminants in the water supply at Camp Lejeune," if a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of §3.307(a)(7), the following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d). (1) Kidney cancer. (2) Liver cancer. (3) Non-Hodgkin's lymphoma. (4) Adult leukemia. (5) Multiple myeloma. (6) Parkinson's disease. (7) Aplastic anemia and other myelodysplastic syndromes. (8) Bladder cancer. (emphasis added). The Veteran's personnel records for his active duty service indicate that he was stationed at Camp Lejeune between May 1969 and September 1969, and between February 1971 and April 1971. The Veteran's service records for his active duty service do not contain any relevant findings or diagnoses. As for the post-active duty medical evidence, it shows that the Veteran was first treated for kidney cancer beginning in 2002, at which time he was noted to have a history of nephrolithiasis, and a left renal mass. He underwent a left nephrectomy. Pathology test results noted left kidney renal cell carcinoma. The Board finds that service connection for residuals of left-sided kidney cancer is warranted. The Veteran is shown to have met the requirement for presumed exposure to contaminants in the water at Camp Lejeune, as he had at least 30 days of service at Camp Lejeune between 1969 and 1971. Therefore, the requirement that a veteran serve no less than 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, is shown to have been met. Thus, exposure to the contaminants in the water supply systems at Camp Lejeune is presumed. He is shown to have kidney cancer, a disease for which presumptive service connection is warranted under 38 C.F.R. §3.309 (f) for veterans, or former reservists, who are shown to have been exposed to contaminants in the water supply at Camp Lejeune during military service and who meet the requirements of §3.307(a)(7). Accordingly, service connection for residuals of left-sided kidney cancer is granted. The Board parenthetically notes that arguments raised by the Veteran's representative, to include assertions of CUE in previous and final RO decisions, implicate the issue of the correct effective date for service connection. As a general matter, where service connection is granted based on a change in the law, the effective date will not precede the effective date of the changed law. 38 U.S.C. § 5110 (g) (2014); 38 C.F.R. §§ 3.114 (a), 3.400(p) (2017). However, it is for the RO to assign the effective date for service connection for left-sided kidney cancer in the first instance, and there is therefore no issue involving the effective date for left-sided kidney cancer that is currently before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As the Board has granted the claim in full, any failure of VA in its duty to assist could be no more than harmless error, and the Veterans Claims Assistance Act of 2000 need not be further discussed. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for residuals of left kidney cancer is granted. ___________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs