Citation Nr: 21065742 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-54 359 DATE: October 27, 2021 ORDER Entitlement to an effective date prior to March 14, 2017 for the award of Dependency and Indemnity Compensation (DIC) on the basis of service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. In an August 2017 Board decision, the Board granted entitlement to DIC on the basis of service connection for the cause of the Veteran's death. 2. In an October 2017 rating decision, the RO effectuated the Board's August 2017 decision and assigned an effective date of March 14, 2017 for the award of DIC based on service connection for the cause of the Veteran's death. 3. The effective date of the amended VA regulations allowing for presumptive service connection for kidney cancer based on exposure to contaminated drinking water at Camp Lejeune is March 14, 2017. There was no basis on which to grant service connection for kidney cancer on a different theory of entitlement, to include a direct service connection claim. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 14, 2017 for the grant of service connection for cause of death have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.307, 3.309, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served with the United States Marine Corps from September 1961 to January 1966. The Veteran passed away in August 1988, and the appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky that effectuated the Board's August 2017 grant of DIC on the basis of service connection for the cause of the Veteran's death; and, assigned an effective date of March 14, 2017 for the grant of service connection for the cause of the Veteran's death. The appellant timely filed a notice of disagreement (NOD), and a December 2018 substantive appeal to the Board appealing for an earlier effective date for the grant of service connection for the cause of the Veteran's death. In her December 2018 substantive appeal, the appellant requested a videoconference hearing. However, in June 2019, the appellant withdrew her hearing request. See 38 C.F.R. § 20.704(e). In February 2020, the Board denied an earlier effective date for the award of DIC on the basis of service connection for the cause of the Veteran's death. Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 order, the Court granted a Joint Motion for Remand (JMR) and remanded the matter to the Board for action consistent with the JMR. Entitlement to an effective date prior to March 14, 2017 for the award of Dependency and Indemnity Compensation (DIC) on the basis of service connection for the cause of the Veteran's death The appellant in this case is the Veteran's widow and she contends that she is entitled to an earlier effective date prior to March 14, 2017 for the grant of service connection for cause of death, specifically asserting the date VA received her claim as the proper effective date. After a thorough review of the evidence, an effective date prior to March 14, 2017 is not warranted. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 38 C.F.R. § 3.309 (f). The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). The list of diseases includes kidney cancer. The appellant submitted a claim form that was received on January 8, 2013. The appellant contends that she filed her original claim in August 2010 and asserts that this should be the proper effective date. The claims file does not reflect an August 2010 claim. However, July 2010 correspondence from VA reflects that they were working on the appellant's claim for service connected death benefits. That notwithstanding, and even if the original August 2010 were ultimately located, the dispositive issue in this case is the effective date of this liberalizing law concerning the addition of diseases presumed to be due to exposure to contaminated water at Camp Lejeune. Because the appellant's claim was received prior to the effective date of the liberalizing law, which dictates the earliest possible effective date in this case, the effective date can be no earlier than the earliest possible effective date allowed by law. The Veteran's death certificate reflects that he died on August [REDACTED], 1988 and his cause of death was adenocarcinoma of left kidney due to (or as a consequence of) metastases to retroperitoneum due to (or as a consequence of) metastases to lung and pleura due to (or as a consequence of) metastases to subcutaneous tissue. In October 2011 correspondence, the appellant reported that she believed that the Veteran served in Vietnam, was exposed to Agent Orange, and believed that this was the cause of his kidney cancer. In April 2011, the appellant submitted a link for an article arguing that the USS Point Defiance was on inland water ways in Vietnam and thus, the Veteran was exposed to Agent Orange. In correspondence received December 2012, dated December 2010, the appellant reported that the Veteran's death certificate shows that one of the causes of his death was respiratory cancer that she argues is due to exposure to Agent Orange. In January 2013, the appellant filed a VA 21-534 Application for DIC. An August 2013 VA medical opinion reflects that the clinician found that the adenocarcinoma of the left kidney, metastasis to retroperitoneum lung, pleura and subcutaneous tissue was less likely as not (less than 50/50 probability) caused by or a result of the Veteran's exposure to CLCW. As rationale, he reported that renal cell cancers are 50 percent more common in men than in women and usually occur within the sixth to eighth decade of life. He reported that approximately 80 to 85 percent of tumors are found at diagnosis to be within the renal cortex, 8 percent are transitional cell tumors located in the renal pelvis, and rarer tumors comprise the rest. Furthermore, about 62 percent of patients have disease localized to the kidney at initial diagnosis. Another 17 percent have spread to the regional lymph nodes and 17 percent are metastatic. He reported that some of the known risk factors for the development of renal cancer include occupational exposure to solvents, obesity, cigarette smoking, hypertension, acquired cystic kidney disease, genetics, chronic hepatitic C, and use of certain analgesics. The clinician reported that the Veteran's exposure to trichloroethylene (TCE) and perchloroethylene (PERC) were well below the dose which might be considered a risk for the development of renal cancer. He reported that exposure to vinyl chloride is not an associated risk. He reported that the medical records were not available for review and the only known risk factor for the Veteran's disease which can be ascertained was his obesity. Thus, he concluded that it is not likely that his exposure to CLCW lead to the development of renal cancer and associated metastases. He cited medical treatise evidence in support of his opinion. In September 2013, the RO denied the claim for entitlement to DIC and cause of death on a direct basis. The RO addressed the appellant's argument that the Veteran's kidney cancer was related to herbicide exposure and found that there was no evidence of record to factually support a link between his cancer and herbicide exposure. While they concluded that the Veteran was exposed to contaminated drinking water when he served at Camp Lejeune, they noted that the Veteran's service treatment records were silent for any complaints, treatment, or diagnosis for kidney cancer. Additionally, they relied on the August 2013 VA medical opinion and concluded that the evidence of record failed to show that this condition was related to the Veteran's military service; as such, service connection for the cause of death was denied. In December 2013 correspondence, the appellant argued that the Veteran lived on base for over 16 months and had significant exposure to TCE, he was 44 when he had kidney cancer, service treatment records would not have shown treatment or diagnosis, there are no medical records prior to 1990 due to them being destroyed, and he was not obese at Camp Lejeune. In April 2014, the appellant submitted a letter from a Dr. J.H. who reported that he is certified in thoracic surgery. He reported that he took care of the Veteran, as well as Dr. J. Hall, in 1988. They found that the Veteran had renal adenocarcinoma with widespread metastases with METs to his peritoneum, his lung, pleura, and skin. He concluded that the Veteran spent enough time at Lejeune to make him a very special exposed marine. He reported that he should like to expose his "entire trouble" to his prolonged exposure to Camp Lejeune. In another April 2014 handwritten letter from a Dr. J. Y., he reported that after perusal of detailed records concerning the Veteran, he felt like his cancer and subsequent death where more likely than not caused by his exposure to contaminated water at Camp Lejeune. In May 2014, an addendum VA medical opinion was obtained to address the appellant's additional arguments as well as Dr. J.H. and Dr. J.Y.'s statements. The clinician found that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, she noted that the death certificate indicated a contributory cause of death was noted as "marked obesity." She noted that on physical examination in January 1966, the Veteran was noted to be "obese" at a weight of 230 pounds and height of 72 inches. A note in November 1965 also stated that he was advised weight reduction. A December 1961 progress note reflects "previous obesity." She reported that a review of the medical literature, including PubMed, Medline, National Institute of Health, ATSDR, and NRC reports show that obesity is a known risk factor for the development of renal cell carcinoma and that the Veteran had a documented history of obesity while in military service as well as a diagnosis of "marked obesity" as a contributory cause of death. Additionally, the Veteran did not have edema and swelling secondary to his kidney cancer and metastases at the time of his previous diagnosis of obesity. She reported that the evidence of association between exposure to contaminated water at Camp Lejeune had only been limited/suggestive at best, and the latest studies, including metanalyses do not support a statistical association between the exposure and the contaminated water at Camp Lejeune. She concluded that the Veteran's known risk factor of obesity outweighed any limited suggestive evidence of association between exposure to contaminated water at Camp Lejeune and the development of adenocarcinoma of the kidney. She noted that Dr. J.H. and Dr. J.Y.'s opinions did not provide substantiating literature citations or evidence in support of their opinions. Finally, she reported that the medical literature does not show any association between exposure to contaminated water at Camp Lejeune and the development of these attributes associated with the Veteran's death. She cited medical treatise in support of her opinion. In a June 2014 Statement of the Case, the RO continued the denial of service connection for the cause of the Veteran's death. The appellant's VA form 9 was received in September 2014. The SOC indicates that service connection for the cause of death is not warranted based on the preponderance of the evidence which weighed against the claim. In other words, there was no basis upon which to grant service connection at that time. Between the time of the appellant's substantive appeal in September 2014, and the Board's August 2017 decision was issued, the law changed, and kidney cancer was added to a list of diseases that are presumed to be due to contaminated water at Camp Lejeune. In an August 2017 Board decision, the Board granted DIC on the basis of service connection for the cause of the Veteran's death as a presumptive disease due to exposure to contaminants in the water at Camp Lejeune. The RO implemented that award with an effective date of March 14, 2017, the date VA law was amended to include presumptive diseases, including kidney cancer, associated with contaminants at Camp Lejeune. Generally, the effective date of an award for compensation "shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a); see 38 C.F.R. § 3.400. Where compensation is awarded pursuant to a liberalizing law, however, the award may be retroactive for one year "from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier." 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). For a claimant to be eligible for such a retroactive payment, "the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." 38 C.F.R. § 3.114 (a). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). Although the appellant has argued for an earlier effective date, an effective date prior to March 14, 2017, is not warranted as there was no basis to grant service connection for the cause of death prior to March 14, 2017. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The appellant argues that an earlier effective date is warranted because the claim for service connection could have been granted on a direct basis. The August 2017 Board decision did not specifically deny service connection for cause of death on a direct service connection basis. Nevertheless, the appellant is not entitled to an effective date prior to March 14, 2017 because the evidence of record prior to the date of the liberalizing law did not warrant service connection for kidney cancer. Based on a review of the available records, his particular expertise, and medical literature, the August 2013 VA clinician and May 2014 clinician found that the Veteran's kidney cancer was less likely than not (less than 50/50 probability) incurred in or caused by the Veteran's exposure to contaminated water at Camp Lejeune. Specifically, the clinician explained the types of kidney cancers that exists, some of the known risk factors, and provided an adequate rationale for his conclusion that the Veteran's disability was not due to CLCW exposure. Additionally, the May 2014 VA clinician attributed the Veteran's known obesity, seen in service, to his later development of kidney cancer. She specifically noted that the studies at that time were limited to suggest a connection between his diagnosis and exposure to contaminated water at Camp Lejeune. As the clinicians explained the reasons for their conclusions based on an accurate characterization of the evidence of record, based on the information he had at that time, their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In contrast to the above opinions, Dr. J.H. and Dr. J.Y. offered little evidence in support of their conclusory statements. There was no research and no indication of the files they reviewed to come to their conclusions. Thus, these opinions hold very little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). As such, but for the liberalizing law allowing for service connection for kidney cancer on a presumptive basis, the most probative evidence of record weighed against the claim of service connection for the cause of the Veteran's death. In other words, the Veteran's kidney cancer was found to be less likely than not due to disease or injury in service, including exposure to contaminated water at Camp Lejeune; and, the only basis for the grant of service connection for the case of the Veteran's death is the addition of kidney cancer to the presumptive diseases found to be associated with contaminated water at Camp Lejeune. Notably, however, this presumption is rebuttable, and there is evidence of record that tends to show that the Veteran's obesity, and not contaminated water, is the greater risk factor for developing kidney cancer. Nevertheless, the Board granted service connection for the cause of the veteran's death based on the presumption, rather than rely of the evidence against the claim to rebut the presumption. As noted, the most probative evidence of record was against a finding of an association between the Veteran's exposure to contaminated water at Camp Lejeune and his kidney cancer. Accordingly, the only legal basis to grant the claim comes from the addition of the presumption, which was not effective until March 14, 2017. Even though the Veteran's kidney cancer was found to be a cause of his death in 1988 and the original claim was likely received in 2010, entitlement did not arise until March 14, 2017, when kidney cancer was added to the list of presumptive conditions associated with Camp Lejeune. Because entitlement arose after the date of claim, the date of the liberalizing law is the appropriate effective date in this case and the appeal for an earlier effective date is denied. The appellant argued in her November 2017 NOD that Nehmer class rules apply to any condition granted presumptive status by the VA. While Nehmer provides an exception to the general effective date rules, allowing, in certain cases, an effective date for a grant of service connection earlier than the date VA issues a liberalizing law, it is not applicable here. Nehmer involved a class action suit affecting Vietnam veterans diagnosed with a disability presumptively associated with herbicide agent exposure; it was limited in scope to those particular class members (Vietnam veterans who had a covered herbicide disease listed under 38 C.F.R. § 3.309 (e)) and does not pertain to veterans diagnosed with a disability presumptively associated with exposure to contaminated water at Camp Lejeune. Based on orders of a United States District Court, the Nehmer stipulations were incorporated in a final regulation, which addresses the Nehmer class members only. See 38 C.F.R. § 3.816. Since then, there has been no case precedent handed down, and no change in the statute or regulations, broadening the scope of the effective date exception to include veterans other than those Nehmer class members who were exposed to herbicide agents in Vietnam during the Vietnam era; and who have been diagnosed with one of the listed diseases under38 C.F.R. § 3.309 (e). Accordingly, as the Veteran is not a Nehmer class member, the appellant's claim falls outside the narrow scope afforded to Nehmer class members, and therefore an effective date based on the Nehmer regulations is precluded as a matter of law for a service-connected disease presumed to be due to contaminated water at Camp Lejeune. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.