Citation Nr: 20021883 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-62 456 DATE: March 27, 2020 REMANDED Entitlement to service connection for right kidney cancer status post nephrectomy is remanded. Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Army from December 1990 to January 1991, January 2003 to January 2004, and February 2007 to January 2010 with service in South West Asia from April 2003 to February 2004. The Veteran also had an additional 21-plus years of service with a Reserve Component. In February 2020, the Veteran testified at hearing before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the record. In this regard, the Board has characterized the above service connection claim as service connection for only the right kidney. The Board finds that it only has jurisdiction over this more limited claim, even though the November 2016 statement of the case and February 2020 personal hearing transcript characterized the claim as service connection for a kidney disorder (i.e., right and left kidney disorders), because this was the sole issue adjudicated in the December 2014 rating decision that is the subject of the current appeal. Entitlement to service connection for right kidney cancer status post nephrectomy is remanded. As to the claim of service connection for right kidney cancer status post nephrectomy, at his February 2020 personal hearing before the undersigned the Veteran reported that his right kidney disorder was caused by his exposure to chemical weapons and ionizing radiation as well as contaminated water while serving in Iraq from July 2003 to February 2004 to include from being housed at a decommissioned Iraq hospital at Camp Getsome during this time. In this regard, the Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014), (holding, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans have served in the Persian Gulf since August 2, 1990). Given the Veteran’s documented service in South West Asia from April 2003 to February 2004 and his current disability (i.e., right kidney cancer status post nephrectomy), the Board finds that the criteria to provide the appellant with a VA examination to ascertain the origins of his kidney disorder have been met. See 38 U.S.C. § 5103A(d); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Next, as noted above, the Veteran testified that his right kidney disorder was caused by his exposure to ionizing radiation while serving in Iraq. In this regard, 38 C.F.R. § 3.317 requires certain development when, as in the current appeal, the Veteran has kidney cancer and it is alleged that it was caused by ionizing radiation exposure while on active duty. Therefore, the Board finds that a remand is also required for the agency of original jurisdiction to take this development. The Veteran also testified in February 2020 that his oncologist at Memorial Sloan Kettering Cancer Center had provided VA with an etiology opinion as to the relationship between his current kidney disorder and his service in the Persian Gulf during the war. However, a copy of this opinion is not found in the record. Therefore, the Board finds that a remand to obtain this opinion is required. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Lastly, the Board finds that while the appeal is in remand status any outstanding VA and private treatment records from Sloan Kettering Hospital should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded. As to the claim for a rating in excess of 10 percent for a right knee disorder, the Board finds that a remand is required because none of the evidence of record, including the last VA examination held in November 2012, provides adequate medical evidence to rate the Veteran’s disability taking into account the United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017) (VA musculoskeletal examinations must include range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups). The appeal is REMANDED for the following actions: 1. Associate with the claims file a copy of the opinion from the Veteran’s oncologist at Memorial Sloan Kettering Cancer Center that he testified about in February 2020. 2. After obtaining all needed authorizations from the appellant, obtain any outstanding private treatment records to include from Memorial Sloan Kettering Cancer Center. If possible, the Veteran or his representative should submit any new pertinent evidence that the Board does not have (if any). 3. Associate with the record any outstanding VA treatment records. 4. Given the Veteran’s testimony regarding having ongoing service with a Reserve Component, associate with the record any outstanding records from this source. 5. As to the claim of service connection for a right kidney disorder to include due to ionizing radiation exposure, undertake all development required by 38 C.F.R. § 3.317. 6. After undertaking the above development to the extent possible, obtain a medical opinion as to the origins of the Veteran’s right kidney cancer status post nephrectomy. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all right kidney disorders. b. As to each diagnosed right kidney disorders, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) causally related to active service. c. If a nexus to his service cannot be established for any right kidney abnormality, provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. d. If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. In providing answers to the above questions, the examiner is asked to consider and discuss the lay claims from the Veteran regarding observable symptomatology as well as his claims that his right kidney disorder was due to his exposure to chemical weapons and ionizing radiation as well as contaminated water while serving in Iraq from July 2003 to February 2004 to include from being housed at a decommissioned Iraq hospital at Camp Getsome during this time. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. 7. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his right knee disorder. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all right knee pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. (e) If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (e) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right knee forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. (f) If the examiner cannot estimate the degrees of additional range of motion loss in right knee forward flexion and backward extension during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (g) The examiner should also state the nature, extent, and severity of any right knee instability and/or subluxation. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. (Continued on the next page)   The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.