Citation Nr: 21008160 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-31 897 DATE: February 11, 2021 ORDER Entitlement to an effective date of October 26, 2015 and no earlier for service connection for neoplasm of the kidney with right kidney removal and chronic renal disease is granted. Entitlement to an effective date of May 5, 2016 and no earlier for renal cell carcinoma skin lesion is granted. Entitlement to an effective date of May 5, 2016 and no earlier for service connection for metastatic renal cell carcinoma to lung with pulmonary effusion is granted. Entitlement to an effective date of December 9, 2015 and no earlier for chronic diarrhea and constipation is granted. FINDINGS OF FACT 1. VA first received a claim of service connection for kidney cancer on October 26, 2015. 2. The evidence of record is at least in equipoise that the Veteran’s neoplasm of the kidney with right kidney removal and chronic renal disease is related to his service on a direct, non-presumptive basis, and arose prior to October 26, 2015. 3. The Veteran’s renal cell carcinoma skin lesion first manifest in a biopsy on May 5, 2016. 4. The Veteran’s metastatic renal cell carcinoma to lung with pulmonary effusion first manifest on a May 5, 2016 CT of the chest. 5. The Veteran’s chronic diarrhea and constipation first manifest in a December 9, 2015 VA treatment note. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of October 26, 2015, and no earlier, for the grant of service connection for neoplasm of the kidney with right kidney removal and chronic renal disease have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 2. The criteria for entitlement to an effective date of May 5, 2016, and no earlier, for the grant of service connection for renal cell carcinoma skin lesion for renal cell carcinoma skin lesion have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 3. The criteria for entitlement to an effective date of May 5, 2016, and no earlier, for the grant of service connection for metastatic renal cell carcinoma to lung with pulmonary effusion have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 4. The criteria for entitlement to an effective date of December 9, 2015, and no earlier, for the grant of service connection for chronic diarrhea and constipation have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to March 1972. He died in June 2018. The Appellant is his surviving spouse and has been properly substituted n this matter. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2017. A transcript of that hearing is of record. These matters were denied by the Board in September 2017. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court issued an order granting a Joint Motion for Remand (JMR), which served to vacate the September 2017 Board decision and remand the appeal for readjudication. These matters were denied by the Board again in May 2019. The Appellant appealed the denial to the Court, and in June 2020 the Court issued an order granting a JMR that vacated the May 2019 Board decision and remanded the appeal for adjudication. Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. 1. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for neoplasm of the kidney with right kidney removal and chronic renal disease The Appellant contends that the effective date for service connection for neoplasm of the kidney should be October 26, 2015, the date of claim. The Board finds that service connection for kidney cancer may be granted on a direct-incurrence basis. As such, an effective date of October 26, 2015, the date of claim, is granted. Where compensation is awarded pursuant to a liberalizing law, the effective date shall be fixed in accordance with facts found but shall not be earlier than the effective date of the legislative act or VA issue. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996). Effective March 14, 2017, VA established a set of presumptions for eight diseases for Veterans’ exposure to contaminated water at Camp Lejeune during the period beginning August 1, 1953 and ending on December 31, 1987. See 82 Fed. Reg. 4,173. Kidney cancer is included among the amended regulation’s enumerated diseases. See 38 C.F.R. § 3.309 (f). Because the Agency of Original Jurisdiction (AOJ) granted the Veteran’s claims pursuant to a liberalizing law, the AOJ assigned an effective date of March 14, 2017. However, if service connection could be granted on a direct basis and not pursuant to the liberalizing law, then 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114 (a) would not be applicable, and the effective date would be the date of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Thus, the focus of this analysis will be whether the evidence reflects that service connection was warranted without relying on the liberalizing law. The evidence against service connection on a direct-incurrence basis is a July 2016 VA examination. The examiner discussed the case at length and concluded that the presence of several risk factors for renal cancer (age, gender, hypertension, and obesity), and given the paucity of published studies showing a statistically significant correlation between exposure to solvents in the groundwater at Camp Lejeune, especially in light of the Veteran being at Camp Lejeune for one and one quarter years 43 years prior to his initial cancer diagnosis, that the Veteran’s kidney cancer was less likely than not related to his exposure to Camp Lejeune. The examiner indicated that the 43 years between when the Veteran was at Camp Lejeune and the diagnosis of his kidney cancer would be an abnormally long latency cancer. The evidence in favor of service connection on a direct incurrence are two positive private opinions. A January 2016 opinion stated that it is highly likely that the Veteran’s condition is a direct result to ground water contamination at Camp Lejeune during service, with the rationale that he had no contributive risk factors for renal cancer. A lengthy and detailed December 2020 medical opinion took issue with the July 2016 VA opinion, and stated that over 28 separate epidemiologic studies consistently show that Trichloroethylene (TCE), the chlorinate solvent found in Camp Lejeune’s drinking water, results in higher risk of kidney cancer. The private examiner also disagreed with the VA examiner’s assessment of the Veteran’s risk factors, and stated that he had only one risk factor, being obese. The private physician explained that the Veteran never smoked, had no family history of kidney cancers, had no known rare genetic disorders, and was not African American. The private examiner asserted that the Veteran’s age and gender did not cause kidney cancer. As for the VA examiner’s identification of hypertension as a risk factor, the private physician found that the Veteran’s hypertension was at least as likely as not caused by TCE exposure. The private physician also disagreed with the examiner regarding latency periods, and found that the 43-year latency period in the case of the Veteran’s kidney cancer fits with that generally known for kidney cancer. The private physician concluded that, given the Veteran’s conceded exposure to TCE and paucity of personal risk factors, the physician was convinced based on the best medical and scientific evidence and to a high degree of confidence that the Veteran’s exposure to TCE is at least as likely as not the cause of his kidney cancer. Several medical articles were also submitted in support of the private physician’s opinion. The Board finds that the detailed December 2020 private medical opinion is at least as probative as the July 2016 VA examination opinion. As such, the evidence is at least in equipoise, and the Board finds that service connection for neoplasm of the kidney may be granted on a direct-incurrence basis. Because service connection may be granted on a direct-incurrence basis, service connection in this case does not depend upon liberalizing law. In a direct-incurrence service connection claim, the effective date is the later of the date entitlement arose and the date of claim. In this case, an October 16, 2015 scan showed a lesion that was later diagnosed as renal cell carcinoma. Therefore, entitlement arose at some point before the Veteran’s claim was received on October 26, 2015. Because the date of claim is later than the date of entitlement, the Board will assign an effective date of October 26, 2015, and no earlier, for the grant of service connection for neoplasm of the kidney. 2. Entitlement to an effective date earlier than March 14, 2017 for the grant of renal cell carcinoma skin lesion 3. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for metastatic renal cell carcinoma to lung with pulmonary effusion The Appellant contends that the grant of service connection for renal cell carcinoma skin lesion and metastatic renal cell carcinoma to the lung should also be the date of claim, October 26, 2015. These disabilities were granted secondary to neoplasm of the kidney because they are extensions of the Veteran’s metastatic renal cancer. In this case, metastasis of renal cancer is contemplated by the claim of kidney cancer. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). However, the date entitlement arose is May 5, 2016, which is the date in the medical record when biopsy showed renal cell metastasis in a skin lesion on the back, and when a chest CT showed bilateral pulmonary nodules consistent with metastatic cancer. Prior to that date, although the Veteran was diagnosed with kidney cancer, the Veteran had not been diagnosed with metastasis in a skin lesion or the lungs. On the contrary, a November 2015 private treatment note found no evidence of metastatic disease outside of the kidney. Therefore, the date entitlement arose in this case is later than the date of claim, which means that the effective date is the date entitlement arose. For the forgoing reasons, the Board assigns an effective date of May 5, 2016 and no earlier for the grant of service connection for renal cell carcinoma skin lesion and metastatic renal cell carcinoma to lung with pulmonary effusion. 4. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for chronic diarrhea and constipation The Appellant contends that the effective date for the grant of service connection for chronic diarrhea and constipation should be the date of claim, October 26, 2015. In this case, the October 26, 2015 claim for kidney cancer reasonably contemplates the effects of treatment for kidney cancer. A March 2017 VA examination indicates that the diarrhea and constipation are as likely as not due to the Veteran’s chemotherapy treatment and dialysis treatment for his renal cell carcinoma. However, the first reference to these problems is later than the date of claim - a December 9, 2015 VA treatment note. A note from the next day indicates that the Veteran was prescribed medication to treat constipation. Therefore, the date entitlement arose for this problem is December 9, 2015. Because the date entitlement arose is later than the date of claim in this case, the effective date is the date entitlement arose. The Board grants an effective date of December 9, 2015, and no earlier, for the grant of service connection for chronic diarrhea and constipation. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.