Citation Nr: 21029670 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-33 586 DATE: May 14, 2021 ORDER Entitlement to service connection for a liver disability is denied. Entitlement to service connection for an adrenal gland disability is denied. Entitlement to service connection for a pancreas disability is denied. REMANDED Entitlement to service connection for kidney cancer is remanded. FINDINGS OF FACT 1. The Veteran's hepatic cysts and fatty liver do not cause functional impairment, and they are not diseases or disabilities under VA law and regulations. 2. The Veteran's right adrenal adenoma nodule does not cause functional impairment, and is not a disease or disability under VA law and regulations. 3. The Veteran's benign pancreatic cysts do not cause functional impairment, and are not a disease or disability under VA law and regulations. CONCLUSIONS OF LAW 1. The criteria for service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for an adrenal gland disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for a pancreas disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to March 1971, including service in the Republic of Vietnam. This case comes to the Board of Veterans' Appeals (Board) from September 2014 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office. The case was previously remanded by the Board for further development in April 2018 and June 2020. Liver, Adrenal Gland, and Pancreas Disabilities The Veteran has requested service connection for disorders in his pancreas, adrenal gland, and liver. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Veteran's VA treatment records show that he has been diagnosed with adrenal nodules, pancreatic cysts, and liver cysts. A June 2014 MRI found right adrenal adenoma, cystic focus in the pancreatic tail, and several small hepatic cysts. A January 2015 MRI found benign pancreatic cysts and benign right adrenal adenoma, and a June 2018 CT scan found stable right adrenal adenoma. He has continuing notations of nodules in the liver, pancreas, and adrenal gland. A June 2019 CT scan found no focal lesion in the pancreas, a stable low-density right adrenal gland nodule in the adrenal gland, and a los-density area in keeping with an incidental cyst. The Veteran has also been diagnosed with fatty liver. After the Board's prior remand, medical opinions were requested regarding the nature and etiology of the Veteran's pancreas, liver, and adrenal gland disorders. Medical opinions were provided in September 2020 by a physician who reviewed all the records in the claims file and interviewed the Veteran by telephone. Regarding the pancreas disorder, the Veteran reported that he did not have any symptoms related to a pancreas condition, but stated that he had "nodules" on this pancreas from previous imaging. The physician wrote that VA treatment records did note cystic lesion on the pancreatic tail, but there was no documentation of pancreatic insufficiency, dysfunction, inflammation, or malignancy. The examiner found that it was less likely than not that the Veteran had a pancreas disorder that could be related to active duty service, explaining that pancreatic cysts are diagnosed with increasingly frequency because of the widespread use of cross-sectional imaging, but the condition is benign, can develop anywhere in the body, and is often stable or resolves over time. She wrote that there was no medical evidence of impairment or dysfunction in the pancreas' effect on endocrinologic or digestive systems, and in the absence of a pancreatic abnormality, impairment, or dysfunction, the claim for a pancreas disability could not be substantiated. Regarding the adrenal gland, the examiner wrote that the Veteran was found to have an adrenal nodule by imaging studies since 2013, but it had been asymptomatic and proven to be benign, for which no treatment or intervention was warranted. The examiner found that the Veteran's radiographic finding of a benign, stable right adrenal adenoma was not productive of a clinical or functional disability, and again noted that technological advances in imaging had resulted in increased incidents of such findings, even in the absence of any clinical manifestations of adrenal disease. Regarding the liver, the Veteran denied having any symptoms of liver disease, but reported being told of having cysts of his liver from previous imaging studies. She also noted that he had been diagnosed with fatty lived in 2013. She found that the Veteran's fatty liver and liver cysts were radiographic findings not productive of clinical symptoms or findings consistent with active disability or dysfunction. She wrote that while changes seen with fatty liver may progress over time and affect the function of the liver due to inflammation or cirrhosis, this Veteran's laboratory data reflected stable hepatic functioning. She wrote that the hepatic cysts had been stable over serial imaging studies for the past 7 years. The Board finds that the Veteran does not have a current pancreas disorder disability, adrenal gland disorder disability, or liver disorder disability, for which service connection could be established. The Veteran has never been diagnosed with an actual pancreas, adrenal gland, or liver disease or disability which causes functional impairment at any time during the pendency of the claim, or at any time prior to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of such a disability, the claims cannot be granted. The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Disability "refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment, and disability ratings are based on the average impairment of work capacity. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. A disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Allen v. Brown, 7 Vet. App. 439 (1995). In the absence of an actual disability, a claim for service connection cannot be substantiated. Here, the Veteran has been found to have cysts on his pancreas, liver, and adrenal gland, but these cysts are benign and have caused no functional impairment or dysfunction, nor have they been found to have resulted in any subsequent disease or disability. The Veteran's "fatty liver" diagnosis likewise has not been found to cause any impairment in function of the Veteran's liver or to have affected his health in any way. The Veteran has acknowledged that he has not had symptoms or impairment from these disorders, but only that they were found during previous imaging studies. The only medical opinion of record clearly found that these cysts were harmless and benign, and these cysts, as well as the diagnosis of "fatty liver," are laboratory findings that do not result in any actual disease or disability. In the absence of any disorder which causes any kind of functional impairment, the Board does not find that the Veteran has a current disability for which service connection can be granted. There is no indication that the Veteran has had any diagnosed disorder related to these cysts/nodules or to fatty liver which has caused any functioning impairment whatsoever. Thus, although the Veteran may have been found on imaging studies to have cysts or nodules, and alterations in his liver, these are not disabilities due to disease or injury for which service-connected compensation benefits may be awarded. There is no indication as to any impairment in earning capacity based on the imaging results. In sum, the Board finds that the Veteran does not have a current liver disorder disability, adrenal gland disorder disability, or pancreas disorder disability, and elevated liver functions test results alone are not a disability under VA law and regulations. The claims are therefore denied. The Board has considered the benefit of the doubt rule, but the preponderance of evidence is against the claims. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Kidney Cancer The Veteran contends that he had kidney cancer that was caused by exposure to dioxins and herbicide agents in Vietnam. In June 2020, the Board remanded this issue in order to obtain a VA medical examination and opinion on the etiology of the Veteran's kidney cancer. The Board remand specifically requested that the opinion be provided by a urologic oncologist. A VA medical opinion was obtained in September 2020 from a physician specializing in internal medicine. The examiner noted that the requested specialist was not available within the Compensation and Pension Department, and a November 2020 Decision Review Officer Memorandum was issued which found that the examiner was adequate for purposes of determining the claim and complying with the Board's remand instruction. Unfortunately, the Board does not find this to be the case. At the outset, there was no explanation why the unavailability of a urologic oncologist meant that the opinion should be provided by an internal medicine physician, and not an oncologist. If no oncologists are available in the entire VA medical system to provide an opinion, the Board requests that this be specified and explained. Additionally, while the November 2020 Memorandum stated that "reasonable minds can only conclude said medical opinion and rationale are deemed more than adequate," this is not the case. The VA examiner provided extensive quotations from medical reference works on why there are no studies which establish an association between herbicide agents and renal cancer. This is not the standard applicable in cases such as this, where an examiner must only determine whether it is as likely as not that this Veteran's kidney cancer was caused or aggravated by exposure to herbicide agents such as Agent Orange. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits ... so long as the evidence for and against that question is in 'approximate balance.'"). The Board therefore finds the VA opinion to be inadequate, and a new opinion that applies the correct standard must be obtained. The matters are REMANDED for the following action: Obtain a medical opinion from an oncologist regarding the etiology of the Veteran's kidney cancer. If an oncologist is not available to provide the opinion, issue a Memorandum explaining why such a specialist is not available, and obtain an opinion from a physician. In the examiner finds that a VA examination must be held prior to providing the opinion, schedule such an examination. The examination may be held via telehealth during social distancing restrictions and an opinion can be provided based on other medical evidence of record. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present liver disability, including renal cancer and residuals of cancer, is etiologically related to the Veteran's active service, to specifically include exposure to herbicide agents in Vietnam. It is pointed out to the examiner must that the fact that renal cancer is not included in the list of diseases presumed related to herbicide agents is not a sufficient rationale for a negative opinion, and the standard for this opinion is not whether there is scientific consensus to support a relationship, but only whether there is an approximate balance of evidence for and against the claim. (Continued on the next page) A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.