Citation Nr: 21065444 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-37 331 DATE: October 26, 2021 ORDER Entitlement to service connection for a kidney disability, to include as due to contaminated water at Camp Lejeune, is DENIED. REMANDED Entitlement to service connection for an inversion injury to the left ankle is REMANDED. Entitlement to service connection for hypertension, to include as secondary to a service-connected anxiety disorder disability, is REMANDED. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's currently endured angiomyolipoma either began during, or was otherwise caused by, his service in the United States Marine Corps. CONCLUSION OF LAW The Veteran's current kidney disorder was not incurred during U.S. Marine Corps service. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from February 1971 to January 1973. The Veteran's military personnel records (PMRs) reflect that he was a vehicle operator on Camp Lejeune in 1971. In July 2020, the Board addressed the claims listed on the title page. At that time, the Board denied the Veteran's claim for service connection for an inversion of the left ankle. The Board remanded claims for service connection for an anxiety disorder, hypertension, and a kidney condition for additional agency of original jurisdiction (AOJ) development. In March 2021. the AOJ issued a rating decision granting service connection for an anxiety. This action constitutes a full grant of the benefits sought on appeal with respect to the claim for service connection for an anxiety disorder. Accordingly, that issue is not currently before the Board. Entitlement to service connection for a kidney disability, to include as due to contaminated water at Camp Lejeune, is denied. In October 2012, the Veteran submitted a VA Form 21-526b. Therein, the Veteran initiated a claim for service connection for a kidney condition, to include as due to contaminated water at Camp Lejeune. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune (hereinafter contaminated water), even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. §§ 3.307, 3.309 (2020). The Board observes that kidney cancer is one of the disabilities deemed to be associated with exposure to contaminated water at Camp Lejeune. Id. In December 2011 and July 2012, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board observes that the Veteran did not report, nor was he treated for, a kidney condition during service in the U.S. Marine Corps. Moreover, during the separation examination in January 1975, the military provider did not note a history that included a kidney condition. Moreover, the Veteran reported "in good health" and checked "normal" for all body systems. In July 2013, a VA examination report was generated that considered the Veteran's exposure to contaminated water at Camp Lejeune. The examiner reported that, "(t)he veteran has treatment records indicated that an imaging abnormality was noted being a renal calcific mass noted on imaging. This condition is not currently considered Malignant or cancerous. Monitoring is ongoing per clinical records. The mass is not currently to be indicative of clinically significant pathology at this time and thus no diagnosis of Kidney Disease is warranted at this time as no clinical pathology is present. Due to this, it is considered less likely than not that this veteran has a Kidney Disease condition related to CLCW." In March 2014, the Veteran's military personnel records (MPRs) were associated with the claims file. After review, the Board notes that the Veteran served the requisite amount of time, during the designated time period, at Camp Lejeune to address presumptive service connection. In September 2015, the Veteran underwent a VA examination that considered the nature and etiology of currently endured kidney conditions. The examiner noted a diagnosis for a calcified mass at the right lower pole of kidney, dating from 1996. The examiner supplied the following medical history: "(t)he veteran was noted, in March 1996, to have a faint 2 cm area of calcification in the lower pole of the right kidney, when being evaluated for back pain with an IVP. Subsequently, the veteran has had numerous studies revealing the persistence of this stable mass between 1996 and 2011. He states that he has Ultrasound evaluations of this mass every 2 years. He denies having any symptoms from this finding." The examiner did not note current renal dysfunction, urolithiasis, kidney infection, or tumors/neoplasms. The examiner opined that, "the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner supplied the following rationale: "(t)he veteran's private medical records note that an IVP performed for evaluation of back pain revealed a calcified mass over the lower pole of the right kidney. Further evaluations over time revealed this to be most likely a benign mass that has not changed between 1996 and 2011. Exams subsequent to this date were reported by the veteran to continue to show no change. It is impossible to estimate how long this kidney mass has been present, without imaging examinations in the years prior to its discovery. What has been found is that it appears to be benign, based on the fact that it has not changed over 15+ years of observation. It was decided by the kidney experts to follow this with serial ultrasounds, as a biopsy was not felt necessary given the occurrence of these benign masses in the kidneys. In addition, a kidney biopsy is not without risk. Without a concrete tissue diagnosis, it is not possible to make a nexus with Camp LeJeune contaminated water exposure, or any other exposure in service. In addition, there is no sign of functional kidney impairment." In November 2017, a notation was generated at the Charleston VA Community-Based Outpatient Clinic (CBOC). At that time, the provider reported the presence of chronic kidney disease. In March 2019, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that, "(i)t was approximately 1995 when they found it, and I've been going back every two years just to have an ultrasound to make sure the spots are not growing, which it's not growing, hasn't changed. They did a renal angiogram, I think, on one test, and the doctor told me then that it wasn't cancerous, but he said it is a spot, you know, on the right kidney, and they said they don't know about the origin, don't know what it came from. They can't tell me. The only way that they can assure anything is if I was to have a biopsy and --so, me and the doctor at that point said it's not worth the biopsy." When questioned by the undersigned, the Veteran relayed that, to his knowledge, kidney mass did not affect function or produce any symptoms. The Veteran relayed that he endured back pain, but he could not attribute it to a kidney condition. The Veteran relayed that the cyst on his right kidney has not grown, but now there is a cyst on the left kidney. In July 2020, the Board addressed the Veteran's claim for service connection for a kidney condition. At that time, the Board found that the July 2013 and September 2015 VA examination reports were based on an inaccurate factual premise and, therefore, not adequate for this analysis. The Board remanded the claim for an addendum opinion regarding the etiology of the Veteran's current chronic kidney disease. The Board directed the AOJ to secure an addendum examination report that addressed the nature and etiology of the Veteran's diagnosed chronic kidney disease. In November 2020, an addendum opinion was associated with the claims file. The examiner relayed that, "(r)ecords were reviewed, including the DBQ dated 9/23/15, STR, separation exam dated 1/27/75, all available renal ultrasounds from 9/5/96 through 2011, renal angiogram 10/7/96, as well as pertinent post-service treatment records including 4/10/18, 11/14/17 and 12/10/15." Therein, examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner supplied the following rationale: "(t)here is no evidence of a renal condition while in service or at separation. The veteran had an episode of low back pain, felt to be renal in nature 9/5/96. Ultrasound and renal angiogram were performed showing a probable benign, calcified 2 cm mass in the lower pole of the right kidney. This is unchanged, or possibly smaller throughout renal sonogram testing through 2011. At no time has the veteran had clinical or "laboratory" renal failure. Creatines 2015 through 2018 are within normal limits, as were GFR's. These changes were considered an incidental finding, but warranted follow-up to assure no suspicious changes occurred. Therefore, the veteran has stable, nonmalignant, barking at will calcified mass with no effect on renal function and no symptoms attributable to it. No specific diagnosis has been rendered, but angiomyolipoma was proffered as part of the differential diagnosis. It is more likely than not that this arose well after service, likely in the mid-1990s. Therefore, the veteran does not have a chronic renal disease, as defined by chronic renal dysfunction. The veteran has a chronic, stable, incidental mass that has never grown, and may have lost size, per the last available ultrasound. There is no evidence to suggest this benign mass is related to service the Camp Lejeune or any exposures therein. (T)here is likely a genetic component." The Board notes that the Veteran served the requisite amount of time, during the recognized time period, at Camp Lejeune for presumptive service connection for certain conditions. 38 C.F.R. §§ 3.307, 3.309 (2020). However, at this time, the Board concludes that the Veteran has not been diagnosed with a presumptive kidney condition / disability that is attributed to exposure with to the water supply at Camp Lejeune. The Board observes that the Veteran maintains a current condition / diagnosis, which has been identified as angiomyolipoma. Consequently, the first requisite element for this service-connection claim has been substantiated. See 38 C.F.R. § 3.303; Shedden at 1167. However, the Veteran's STRs and service medical records do not indicate that the Veteran's current kidney condition was endured at a point during U.S. Marine Corps service. Moreover, the evidence does not reflect that the current condition is etiologically related to the Veteran's active duty service. Consequently, the second and third requisite elements for service connection have not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a kidney disorder. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a kidney disability must be denied, because the preponderance of the evidence weighs against his claim. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. 1. Entitlement to service connection for an inversion injury to the left ankle is remanded. In December 2011, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for an inversion injury to the left ankle. In July 2020, the Board considered the Veteran's claim for service connection for an inversion injury to the left ankle. At that time, the Board found that the weight of the evidence was against a finding that the Veteran's diagnosed chronic / recurrent left lateral collateral ligament sprain either began during, or were otherwise caused by, his military service. In April 2021, the Court of Appeals for Veterans' Claims (Court) issued a joint motion for partial remand (JMPR). Therein, the Court vacated the Board's denial of the claim for service connection for a left ankle disability. The Court relayed that, given Veteran's history of arthritis in the left ankle, remand is warranted for the Board to consider whether the Veteran is entitled to service connection for his current diagnoses of left lateral collateral ligament sprain and arthritis of the left ankle. The Court relayed that, on remand, the Board will ensure that Veteran is given notice thereof, an opportunity to respond thereto, and the opportunity to submit additional argument and evidence. In May 2021, VA sent the Veteran a notification. Therein, VA identified the procedural stance of the Veteran's claim for service connection for a left ankle disability. At that time, the Veteran was notified that, "(y)ou have the opportunity, if desired, to submit additional argument and/or evidence in support of your appeal before the Board proceeds with readjudication." In September 2021, a Written Brief Presentation was associated with the claims file. Therein, the Veteran's representative posited that, "(we) incorporate by reference the arguments offered on behalf of the claimant in the 'Statement of Accredited Representation in Appealed Case', VA Form 646, and any contentions raised by the claimant in the Notice of Disagreement or the Substantive Appeal (VA Form 9 or correspondence in lieu thereof). (We), on behalf of (the Veteran), continue() to assert that these arguments present a basis under which benefits should be granted." In September 2021, the Veteran's records from the Huntington VA Medical Clinic (VAMC) were associated with the claims file. The Board notes that the records include Podiatry notations, addressing the left foot, that were generated in May, July, and August 2021, which is after both the June 2016 statement of the case (SOC) was issued by the AOJ AND the Court's April 2021 JMPR. At this time, the Board observes that additional pertinent medical records (Podiatry) have been associated with the Veteran's electronic claims folder since the AOJ issued the SOC on June 7, 2016. Since these records were added to the Veteran's claims file after issuance of the SOC, and it is clear that the AOJ did not review these records, a Supplemental Statement of the Case (SSOC) must be furnished to the Veteran and his representative. See 38 C.F.R. § 19.31. If the Board were to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would "lose one bite of the apple," meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board concludes that the AOJ should have the opportunity to review the records from any additional and pertinent medical records and issue a SSOC. See 38 C.F.R. § 19.37 (b). On remand, the AOJ should issue a SSOC that considers all the evidence received since the June 2016 SOC and April 2021 Court JMPR. In reaching this conclusion, the Board observes that the Veteran filed his substantive appeal on December 18, 2011. For all substantive appeals received on or after February 2, 2013, if, either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant's representative submits evidence to either the AOJ or the Board for consideration in connection with the issues on appeal, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). However, as this evidence does not appear to have been submitted by either the Veteran or his accredited representative, the claim must be remanded for the AOJ for readjudication with consideration of the newly received evidence. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected anxiety disorder disability, is remanded. Again, in March 2021. the AOJ issue a rating decision. Therein, the AOJ granted service connection for an anxiety disorder with an evaluation of 30 percent, effective December 15, 2011. In March 2021, an article, entitled Association Between Anxiety and Hypertension . . .", was associated with the claims file. Along with the article, the Veteran's representative submitted a VA Form 21-4138. Therein, the representative posited that, " (n)ow that the anxiety disorder has been favorably adjudicated, the VA should obtain a medical opinion regarding service connection for the hypertension: particularly given the positive relationship between anxiety and hypertension (see attached) and the in-service high blood pressure readings recorded in his STRs." When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In light of the AOJ's grant of service connection for an anxiety disability, and the correspondence from the Veteran's representative (on secondary service connection), the Board now finds that a remand is necessary. On remand, the AOJ should secure a VA examination report that addresses a possible etiological link between the now service-connected anxiety disorder disability and any currently endured hypertension. Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The Board observes that additional medical records have been associated with the Veteran's electronic claims folder since the AOJ issued the Statement of the Case (SOC) on June 7, 2016. Since these records were added to the Veteran's claims file after issuance of the SOC, a Supplemental Statement of the Case (SSOC) should be furnished to the Veteran and his representative. See 38 C.F.R. § 19.31. On remand, the agency of original jurisdiction should issue a SSOC that considers all the evidence received since the June 2016 SOC and April 2021 Court JMPR. 2. The Veteran should be scheduled for a VA examination with the appropriate clinician, to determine the nature and etiology of any currently endured hypertension. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any currently endured hypertension had its clinical onset during military service, or is otherwise related to the Veteran's service in the U.S. Marine Corps? (b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any hypertension currently endured by the Veteran was either (i) caused by or (ii) aggravated by the Veteran's service-connected anxiety disorder disability? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his hypertension. 3. After completing any other development that may be warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be given a SSOC and a reasonable opportunity to respond before the record is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.