Citation Nr: 19179556 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 13-10 849 DATE: October 18, 2019 ORDER 1. The grant of service connection for kidney cancer is affirmed, subject to the further action by the Agency of Original Jurisdiction (AOJ) ordered in the remand below. REMANDED 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. An August 2017 rating decision granted service connection for the Veteran’s kidney cancer. 2. An August 2019 supplemental statement of the case (SSOC) denied service connection for kidney cancer (without a finding of clear and unmistakable error in the August 2017 rating decision). CONCLUSION OF LAW The August 2017 rating decision grant of service connection for kidney cancer is final and is not subject to revision by a subsequent SSOC. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1965 to July 1968. He died in 2016, during the pendency of this appeal, and the appellant, who is the Veteran’s surviving spouse, has been substituted for the Veteran as the claimant in these pending claims. These matters are before the Board of Veterans’ Appeals (Board) on appeal of January 2010 and December 2012 Department of Veterans Affairs (VA) rating decisions. In June 2015, these matters were remanded for additional development. 1. Entitlement to service connection for kidney cancer is granted. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). During the pendency of this appeal, effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants in the water supply a Camp Lejeune. Essentially, as amended, 38 C.F.R. §§ 3.307 and 3.309 establish a presumption of service connection for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953 to December 31, 1987 and have a diagnosis of certain listed diseases (to include kidney cancer), even though there is no record of such disease during service. This provision applies to claims pending before VA on the effective date of the rule. See 38 C.F.R. § 3.160. A determination on a claim by the AOJ is final and binding when the claimant is properly notified. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.014. Pursuant to 38 C.F.R. §§ 3.105(a), previous determinations, which are final and binding, will be accepted as correct in the absence of clear and unmistakable error. Clear and unmistakable error arises where “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory provisions extant at the time were incorrectly applied.” Russell v. Principi, 3 Vet. App. 310, 313 (1992). Following the June 2015 Board remand, an August 2017 rating decision granted service connection for the Veteran’s kidney cancer on a presumptive basis (as due to exposure to contaminants in the water supply at Camp Lejeune). See August 2017 rating decision narrative. The award was not memorialized in a rating codesheet. The appellant was provided a copy of the August 2017 rating decision (which states that service connection for kidney cancer was granted). Thereafter, the AOJ issued an August 2019 SSOC denying service connection for kidney cancer. It is not in dispute that the Veteran served at Camp Lejeune for the requisite period in 1966 or that he had kidney cancer (it is listed as the cause of his death). The Board observes that the August 2017 grant of service connection for kidney cancer on a presumptive basis was in accordance to the law and supported by the factual record. The Veteran’s claim seeking service connection for kidney cancer was pending before VA when the presumptive provisions of 38 C.F.R. § § 3.309 (e) became effective on March 14, 2017 (as the Veteran had died, the appellant was properly substituted as the appellant). Under 38 C.F.R. § 3.104, rating decisions that are not appealed and become final, may only be revised if clear and unmistakable error in the rating decision is found. Clear and unmistakable error is not shown (however, the decision is incomplete, as it did not identify the effective date for the award -to allow for filing a notice of disagreement with the effective date assigned). The August 2017 rating decision is final as to the grant of service connection for kidney cancer, any attempt to overturn that final determination by subsequent denial of service connection for kidney cancer is inconsistent with governing law. Accordingly, the appeal to establish that the Veteran’s kidney cancer is service-connected is granted. REASONS FOR REMAND 2. Entitlement to service connection for a psychiatric disability. In June 2015, this matter was remanded for additional development. The response to that remand has been inadequate (failed to comply with remand instructions), and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The June 2015 Board remand ordered a new examination addressing the etiology of all psychiatric conditions shown by the record during the pendency of the claim. The record contains various diagnoses of acquired psychiatric disabilities (to include anxiety disorder not otherwise specified (NOS), mood disorder NOS (to rule out bipolar disorder), and depressive disorder). See July 2008 and October 2011 VA treatment records, and July 2012 VA examination. While his service treatment records (STRs) note he was found to have a schizoid personality disorder, such diagnosis does not appear during the pendency of the claim. The August 2019 VA medical opinion in response to the Board’s remand was limited to the diagnosis of PTSD and did not identify the etiology for all psychiatric diagnoses shown during the pendency of the claim. Additionally, an alternative theory of entitlement has been raised by the record (that the Veteran’s psychiatric disability was secondary to his service-connected kidney cancer). A medical advisory opinion regarding the nature and etiology of the Veteran’s psychiatric disability (that considers all evidence and theories of entitlement raised), and adjudication that encompasses all psychiatric diagnoses shown are necessary. 3. Entitlement to a TDIU rating. The claim for a TDIU rating is inextricably intertwined with the service connection for a psychiatric disability claim being remanded. Therefore, consideration of the matter is deferred pending resolution of the service connection for a psychiatric disability claim. The matters are REMANDED for the following: 1. Issue a complete rating decision (with codesheet) memorializing the grant of service connection for kidney cancer by the August 2017 rating decision, and assigning an effective date for the award. Advise the appellant of her appellate rights as to that decision (specifically regarding the assigned effective date of the award). 2. Obtain complete (from October 2013 to March 2016) clinical records of the Veteran’s VA treatment for psychiatric disability. 3. Then, arrange for the Veteran’s record to be forwarded to psychologist or a psychiatrist for review and an advisory medical opinion regarding the nature and likely etiology of his psychiatric disability. The examiner should provide responses to the following: (a.) Identify (by diagnosis) each psychiatric disability entity shown by the record during the pendency of this claim. Regarding each psychiatric disability diagnosed, indicate whether it is a chronic acquired psychiatric disability or is a development disability or a personality disorder. Indicate whether the personality disorder previously diagnosed (as a personality disorder has not been diagnosed during the pendency of this claim) resolved or evolved into a psychiatric diagnosis shown during the pendency of the claim (i.e., before the Veteran died). (b.) Identify the likely etiology for each chronic acquired psychiatric disability diagnosed. Specifically, is at least as likely as not (a 50% or greater probability) that it is related directly to the Veteran’s service (was incurred therein), or was caused or aggravated (the decision must address aggravation) by a service-connected disability? (c.) If a chronic acquire psychiatric disability diagnosed is determined to be unrelated to service, and not caused or aggravated by a service-connected disability, identify the etiology considered more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical literature/treatise, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.