Citation Nr: 20009701 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-07 549 DATE: February 6, 2020 ORDER Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for neoplasm of the kidney is denied. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for a kidney removal scar is denied. REMANDED Entitlement to a disability rating in excess of 60 percent for neoplasm of the kidney is remanded. Entitlement to a compensable rating for a kidney removal scar is remanded. FINDINGS OF FACT 1. There is no indication of a claim of service connection for a kidney disability prior to August 10, 2017. 2. The September 2017 rating decision granting service connection for neoplasm of the kidney and a kidney removal scar did so pursuant to a liberalizing VA regulation which became effective on March 14, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to March 14, 2017, for the grant of service connection for neoplasm of the kidney are not met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.307, 3.309, 3.400 (2018). 2. The criteria for entitlement to an effective date prior to March 14, 2017, for the grant of service connection for a kidney removal scar are not met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.307, 3.309, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from February 1966 to February 1968, including service in the Vietnam War, for which his decorations included the Purple Heart. These matters are on appeal from a September 2017 rating decision. Neither the Veteran nor his representative have raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Neoplasm of the Kidney – Effective Date 2. Kidney Removal Scar – Effective Date Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). An exception applies when service connection is granted pursuant to a liberalizing law or a liberalizing VA issue. In such cases, when the claim is received within one year of the effective date of the law or VA issue, benefits may be authorized from the effective date of the law or VA issue, but the effective date of the award of service connection shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114. The Veteran first submitted a claim for entitlement to service connection for kidney cancer on August 10, 2017. The Board has reviewed the claims file for any document, submitted before the Veteran’s August 10, 2017, claim, that could be considered a claim for service connection for a kidney disability. The Board has found no communication from the Veteran to VA that could be construed as a formal or informal claim of entitlement to service connection for a kidney disability prior to the claim submitted on August 10, 2017. Moreover, neither the Veteran nor his representative assert that the Veteran filed an informal or formal claim during that time. In its September 2017 rating decision, VA granted service connection for neoplasm of the kidney and a kidney removal scar pursuant to 38 C.F.R. § 3.309(f), which provides for presumptive service connection for kidney cancer for veterans exposed to contaminants in the water supply at Camp Lejeune during military service. The effective date of 38 C.F.R. § 3.309(f) is March 14, 2017. For that reason, the earliest effective date that could be granted in response to the Veteran’s August 10, 2017 claim for service connection for kidney cancer is March 14, 2017, which is the effective date currently in effect for service connection for neoplasm of the kidney and a kidney removal scar. For those reasons, the Board concludes that the Veteran is not entitled to an effective date earlier than March 14, 2017, for service connection for neoplasm of the kidney and a kidney removal scar, which is the effective date of the liberalizing VA regulation within one year prior to the claim that led to the grant of service connection. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 60 percent for neoplasm of the kidney is remanded. The Veteran was afforded a VA examination for his kidney disability in September 2017. Although the examiner noted the Veteran’s September 1999 right radical nephrectomy, the examiner found that the Veteran had not had a kidney transplant or removal. In addition, in an August 2017 statement, the Veteran reported symptoms including fatigue, weight loss, lethargy, and malaise; the examiner did not discuss these reported symptoms to opine as to whether they were attributable to his kidney disability. A remand for a new examination is thus warranted. 2. Entitlement to a compensable rating for a kidney removal scar is remanded. The Veteran’s September 2017 VA examination for his kidney disability provided some details regarding his kidney removal scar but did not fully address the rating criteria for scars. The Veteran was scheduled for an examination focusing on his scar but the appointment was cancelled because he was unavailable. There is nothing in the record to indicate that the Agency of Original Jurisdiction (AOJ) made any further attempt to schedule the Veteran for an examination on a date on which he would have been available. In its February 2019 Statement of the Case (SOC), the AOJ found that the Veteran had not provided good cause for the cancellation, but that is a requirement applicable to failure to report for a scheduled examination, not cancellation prior to the appointment. 38 C.F.R. § 3.655 (2018). A remand to reschedule the examination is thus warranted. The matters are REMANDED for the following action: 1. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his neoplasm of the kidney. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected neoplasm of the kidney. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s August 2017 statement regarding the severity of his symptoms, which he reported as including fatigue, weight loss, lethargy, and malaise. b. The Veteran’s statement in his December 2017 Notice of Disagreement (NOD) regarding the severity of his symptoms, which he reported as including lethargy, malaise, weakness, weight loss, and fatigue during minor exercise. 2. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his kidney removal scar. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected kidney removal scar. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s August 2017 statement regarding the severity of his symptoms. b. The Veteran’s statement in his December 2017 Notice of Disagreement (NOD) regarding the severity of his symptoms. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.