Citation Nr: 21028548 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-36 046A DATE: May 11, 2021 ORDER Service connection for cancer, to include renal cell carcinoma also metastasized to bones, esophagus, adrenal glands, lungs, and/or prostate, (hereinafter in main "metastasized renal cancer"), to include as due to herbicide agent exposure, is denied. Service connection for benign prostatic hyperplasia (BPH), to include as due to herbicide exposure, is denied. Service connection for a bilateral knee disability, to include as due to metastasized renal cancer, is denied. A total disability rating based on individual unemployability (TDIU) due only to service-connected disability posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Metastasized renal cancer did not manifest in service and is not otherwise attributable to service. 2. BPH did not manifest in service and is not otherwise attributable to service. 3. A bilateral knee disability did not manifest in service or within a year of separation and is not otherwise attributable to service. A bilateral knee disability was not proximately caused by, or aggravated beyond its natural progression by, any service-connected disability. 4. The evidence of record does not show that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for metastasized renal cancer have not been met. 38 U.S.C. § 1101, 1110, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for BPH have not been met. 38 U.S.C. § 1101, 1110, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. § 1101, 1110, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3.310. 4. The criteria for a TDIU based on PTSD have not been met. 38 U.S.C. § 1114(s); Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1964 to May 1966, to include service in the Republic of Vietnam. The Veteran died in in August 2020. The appellant is the Veteran's surviving spouse, for whom VA granted substitution in these matters in September 2020. See September 21, 2020 Correspondence. Service Connection The Veteran, and upon substitution the appellant, asserted that metastasized renal cancer, a bilateral knee disability, and BPH were incurred in, aggravated by, or otherwise attributable to, active duty service. Alternatively, the appellant advances that metastasized renal cancer and BPH were due to herbicide agent exposure. And, the appellant also advances that the Veteran's bilateral knee disability was proximately caused by, or aggravated beyond its natural progression by, metastasized renal cancer in the bones. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection based upon exposure to certain herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases associated with herbicide exposure for purposes of the presumption do not include metastasized renal cancer or BPH. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Even though the evidence does not warrant presumptive service connection, a claimant is not precluded from establishing service connection for these contended disabilities with proof of direct causation. See Combee, 34 F. 3d 1039. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Upon the Veteran's May 1966 separation report of medical examination, a military clinician indicated normal clinical evaluations of the Veteran's genitourinary system; lower extremities; endocrine system; and abdomen and viscera. Both the clinician and the Veteran signed this separation report. In the associated May 1988 separation report of medical history, the Veteran reported that he had not had and did not have swollen or painful joints; stomach, liver, or intestinal trouble; tumor, growth, cyst, or cancer; frequent or painful urination; rupture; kidney stone or blood in urine; recent gain or loss of weight; arthritis or rheumatism; bone, joint, or other deformity; lameness; and/or "trick" or locked knee. Both the clinician and the Veteran signed this separation history. A September 2009 VA internal medicine report disclosed that the Veteran had BPH. Additionally, BPH coincided with an elevated prostate specific antigen (PSA) reading. An October 2009 VA consultation report revealed that routine chemistries demonstrated normal renal parameters. In a July 2010 VA progress note, a clinician noted that the Veteran sought treatment for a sudden left knee pain which began on the previous day. The Veteran conveyed that this pain occurred as he was walking down a hill. While the Veteran endorsed pain upon standing and bearing weight in certain ways, he did not experience pain or discomfort while sitting. The Veteran denied left knee swelling and reported that he was not taking medication to assuage pain. In a December 2011 VA progress note, a VA clinician noted that the Veteran sought treatment for left knee pain. The Veteran conveyed that left knee pain began three weeks earlier. The Veteran endorsed that the pain's intensity was most severe after prolonged periods of recumbence followed by straightening. The left knee was also stiff in the morning. The Veteran indicated that walking alleviated the intensity of left knee pain/ache, which could reach an intensity of 10/10. There was no evidence of swelling. Upon interpretation of the results of a December 2011 VA x-ray imaging study of the Veteran's knees, a clinician rendered a diagnosis of moderate osteoarthritis of the right knee. A review of private treatment records from FFH discloses that the Veteran sought treatment for left knee pain in November 2011 and December 2011. August 2015 x-ray imaging of the knees revealed severe medial compartment and mild to moderate patellofemoral compartment degenerative changes at the left knee. There was also a probable small left osteochondral lesion in the medial femoral condyle. Subsequent VA clinical notations showed that steroid injections brought improvement to left knee pain. A March 2016 VA computed tomography (CT) series disclosed a large enhancing mass in the left lower pole of the left kidney and a questionable tumor thrombus within the anterior branch of the left renal vein. And, a needle biopsy of the iliac bone revealed metastatic renal cell carcinoma. In an April 2016 VA hematology/oncology note, a clinician affirmed that the Veteran had newly-diagnosed metastatic renal cell cancer. In June 2016, a VA nurse reported that the Veteran tolerated chemotherapy. Other records from this month reveal that an array of VA clinicians followed the progress of the Veteran's oncological status. In addition to radiation and chemotherapy, the Veteran's treatment included extensive pharmaceutical therapy, monitored through blood chemistry studies. Additionally, other nursing and treatment notes disclose regular monitoring of the Veteran's pain control regimens. These treatment protocols were on-going throughout 2016. In an attachment to an April 2017 notice of disagreement (NOD), the Veteran expressed his belief that his renal cell cancer could be attributed to herbicide agent exposure. In a May 2017 lay statement, the Veteran conveyed that during active duty service, he alighted from a vehicle and fell on his knee (neither right nor left indicated). Consequently, the Veteran reported that his knee became swollen and he was advised to rest. The Veteran indicated that he did not consult with a clinician after this fall. In summary, the Veteran expressed his belief that his knee pain after service emanated from this in-service fall, 2017 VA progress notes continued the treatment protocols and monitoring from 2016. In August 2019, the Veteran underwent a VA knee examination. A clinician reviewed the claims file; considered the Veteran's lay statements; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). After contemplation of the totality of evidence, to include findings from the instant examination, the clinician indicated that the Veteran's bilateral knee disability was less likely than not incurred in or caused by the claimed in service injury (fall). As a rationale for this negative nexus opinion as to direct service connection, the clinician opined that even though the Veteran reported in an in-service fall, chronic knee issues did not emerge until approximately 2015 making it less likely than not that the endorsed in-service fall caused the Veteran's current knee pain symptoms. In August 2019, the Veteran underwent a VA male reproductive system examination. The clinician followed VA exam protocols. The clinician indicated that the Veteran was diagnosed with BPH in 2008. The clinician noted that BPH, as a disease entity itself, does not have any effect on functional abilities to work. After contemplation of the totality of evidence, to include findings from the instant examination, the clinician indicated that the Veteran's BPH was less likely than not related to his active duty service as there was no definitive connection that was accepted widely. As a rationale for this negative nexus opinion, the clinician noted that the Veteran had a long history of stable BPH however VA's approved list of diseases related to herbicide agent exposure did not include BPH. In August 2019, the Veteran was afforded a VA "2010" examination. The clinician followed VA exam protocols. The clinician indicated a current diagnosis of stage IV renal cell cancer. Treatment protocols included chemotherapy and radiation. The clinician opined that the Veteran's cancer was terminal. Upon contemplation of the totality of evidence, this clinician opined that renal cancer was less likely than not incurred in or caused by an in-service event, injury, or illness. As a rationale for this negative nexus opinion, the clinician opined that renal cell carcinoma was not a cancer for which VA has established an accepted connection to herbicide agent exposure. Notably, pathology studies determined that all of the Veteran's cancerous metastatic sites, to include bone lesions, were renal in origin, making it less likely than not that the Veteran's metastatic renal cancer can be determined to be caused by herbicide agent exposure. 2019 and 2018 VA progress notes disclose extensive courses of palliative care, to include pain management, educational programming, dietary and fluids consultations, psychological assessment, and end-of-life services. In February 2021, a physician rendered medical opinions which responded to directives in the Board's August 2020 remand. The physician performed an extensive review of the claims file. In the first opinion, the physician opined that BPH and metastasized renal cancer (renal cell carcinoma also metastasized to bones, esophagus, adrenal glands, lungs, and/or prostate) were less likely than not incurred in or caused by the claimed in-service injury, event, illness, or herbicide agent exposure. As a rationale for this negative nexus opinion, this physician indicated that the Veteran's service treatment records included no diagnoses for these disease entities. Moreover, VA did not recognize these disease entities as related to herbicide agent exposure. The Institute of Medicine (IOM), the primary authority which compiles and updates (on an regular basis) associations between disease entities and herbicide agent exposure, established 4 classifications: (A) Sufficient evidence of an association; (B) Limited or suggested evidence of an association; (C) Inadequate or insufficient evidence to determine an association; and (D) Limited or suggested evidence or no association. The IOM's latest update (2018) stands as the medical authority upon which associations between medical/disease entities find their bases. Renal cell carcinoma without metastasis falls within classification (C). Furthermore, the evidence of record fails to disclose any "particulars" specific to the Veteran's case which would even suggest an association between the claimed metastatic renal cell carcinoma and herbicide agent exposure. BPH did not appear anywhere within the IOM's classificatory scheme because there exists not even a "suspicion" in the medical community that BPH had any connexity to herbicide agent exposure. Moreover, BPH was a common condition in males of advanced age, whose basis was chronic exposure to endogenous testosterone. In another opinion, the physician opined that the Veteran's bilateral knee disability was less likely than not proximately due to or the result of renal cell metastasis to bones. The Veteran completed a bones examination in August 2019, as discussed above. Upon this examination, the clinician noted left knee and left hip pain. A lesion in the left pelvis was confirmed as metastatic renal carcinoma; however, there were no lesions of metastases in the left knee. In sum, there was simply no clinical or pathology evidence of records to suggest that the Veteran's bilateral knee disability was caused by metastatic renal cell carcinoma. Opinions three and four are conversive. The Veteran's claimed right knee disability (left knee disability) was less likely as not proximately due to or the result of the Veteran's left knee disability (right knee disability). Upon examination in August 2019, the clinician opined that imaging demonstrated left knee osteoarthritis from August 2015. The Veteran declined right knee symptoms or dysfunction at that time and there was no right knee disability diagnosis. Stated more directly, there was no objective evidence to support a right knee disability diagnosis. The physician opined that the Veteran's bilateral knee disability was less likely than not aggravated beyond its natural progression by renal cell carcinoma with metastasis to the bones. Replicating the language above as to imaging in August 2015, the physician stated that there was no evidence in the record to suggest that the Veteran's bilateral knee disability was aggravated by renal cell carcinoma with metastasis to the bonesas there was no pathology of such. Otherwise, the physician opined as to the functional impacts of these disabilities on the Veteran's ability to work. As this physician did not provide positive nexus opinions as to any of the proposed theories of entitlement to service connection for metastasized renal cancer; BPH; and/or bilateral knee disability, these functional opinions do not bear upon the instant issues on appeal, as determinations as to functional impact on a claimant's ability to work apply when service connection had been established in a service connection case of this nature. As articulated already, the diseases associated with herbicide agent exposure for purposes of the presumption do not include renal cell carcinoma also metastasized to bones, esophagus, adrenal glands, lungs, and/or prostate or BPH. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). While the appellant believes that these disease entities were caused by herbicide agent exposure, neither the appellant nor her representative submitted competent evidence to support such a theory of causation. Indeed, these lay parties are competent to report what they have heard or discerned; however, the evidence of record fails to show that the appellant or her representative have expertise in epidemiology, oncology, or environmental medicine. See 38 C.F.R. § 3.159. As such, this lay evidence does not constitute competent medical evidence. Here, the Board informs the appellant and trenchantly reminds her representative that a claimant still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). While the evidence of record shows that the Veteran had renal cell carcinoma also metastasized to bones, esophagus, adrenal glands, lungs, and/or prostate; BPH; and a knee disability at the time of his passing, the weight of evidence is against finding an in-service incurrence or predicate. In his May 1966 signed separation report of medical history, the Veteran reported that he had not had and did not have swollen or painful joints; stomach, liver, or intestinal trouble; tumor, growth, cyst, or cancer; frequent or painful urination; rupture; kidney stone or blood in urine; recent gain or loss of weight; arthritis or rheumatism; bone, joint, or other deformity; lameness; and/or "trick" or locked knee. Moreover, the military clinician who conducted the May 1966 separation report of medical examination did not indicate abnormal clinical evaluations of the Veteran's genitourinary system; lower extremities; endocrine system; and abdomen and viscera. The absence of in-service incurrence or predicate forecloses the possibility of establishing service connection for renal cell carcinoma also metastasized to bones, esophagus, adrenal glands, lungs, and/or prostate; BPH; and a bilateral knee disability. See Shedden, 381 F. 3d 1163. Additionally, the weight of evidence is against finding that a knee disability ("osteoarthritis") was diagnosed (or even endorsed) within a year of the Veteran's 1966 separation from active duty service. Consequently, granting service on a presumptive basis is not possible for bilateral knee disability. See 38 C.F.R. §§ 3.307, 3.309. As a matter of law, a grant of service connection on a secondary basis cannot be granted when the primary contended disability is not service connected. This disposes of a grant of service connection for bilateral knee disability, to include as due to metastasized renal cancer. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Therefore, the preponderance of evidence is against the appellant's three service connection claims. As such, there are no doubts to be resolved. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. TDIU The receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). See id. Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). On the date of his passing, the Veteran had the following service-connected disabilities: coronary artery disease status post myocardial infarction, at 100 percent (effective from April 1, 2016) and PTSD, at 30 percent (effective from March 19, 2017). In February 2021, a VA psychologist rendered an opinion as to the severity of the Veteran's PTSD and its impact on the Veteran capacity to perform work-related mental tasks (due exclusively to this one disability). Upon consideration of all of the evidence of record, the psychologist indicated that there was no evidence of record that discloses that the Veteran's capacity to remember work-like procedures and processes had been significantly impacted by his PTSD. There was no evidence of record that discloses that PTSD significantly impacted the Veteran's capacity to demonstrate adequate attention, to understand and to remember short simple instructions, and/or to maintain concentration. Moreover, there was no evidence of record that even suggests that the Veteran was unable to complete a normal workday and work week without interruptions or excessive breaks. Stated more directly, the extant evidence of record fails to show that the Veteran's PTSD, at any time, was productive of total occupational and social impairment which rendered the Veteran unable to obtain and maintain substantially gainful employment. The Veteran was in receipt of a 100 percent rating at the time of his passing and the preponderance of evidence fails to show that the Veteran was unable to work because of the one service-connected disability of PTSD. Consequently, these provisions are not for application. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.