Citation Nr: 22011192 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 20-10 720 DATE: February 25, 2022 REMANDED Service connection for a kidney condition, claimed as chronic kidney disease, stage 3, surgery, to include as due to in-service exposure to contaminated water at Camp Lejeune, is remanded. Service connection for kidney cancer, to include as due to in-service exposure to contaminated water at Camp Lejeune, is remanded. Service connection for scars, to include as secondary to a kidney condition or kidney cancer, is remanded. Service connection for loss of vision, left eye, to include as secondary to a kidney condition or kidney cancer, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the Marine Corps from April 1964 to October 1964, to include service at Camp Lejeune, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Board acknowledges the RO's discussion of new and material evidence related to the issues of service connection for a kidney condition, kidney cancer, scars, and loss of vision in the left eye. However, as the August 2018 rating decision was issued just four months after the April 2018 rating decision, the Board notes that the issue of new and material evidence pertaining to the noted service connection claims is not before the Board. Notably, the April 2018 rating decision was not final. In October 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). A Kidney Condition, Kidney Cancer, Scars, and Loss of Left Eye Vision The Veteran contends he has both a kidney condition and kidney cancer that were caused by his exposure to contaminated water while serving at Camp Lejeune. He testified at the Board hearing that he was exposed to contaminants mostly while regularly drinking the water, taking showers, and engaging in activities that required him to use the contaminated water supply. VA acknowledged that the Veteran served at Camp Lejeune during the applicable presumptive period and for the required time frame. As such, the Veteran's in-service exposure to contaminants in the water supply at Camp Lejeune was conceded. See April 2018 Rating Decision. The Veteran has maintained that he has kidney cancer and chronic kidney disease, stage 3. Both May 2017 and June 2018 VA examination reports reveal that the Veteran has a diagnosis of chronic kidney disease, stage 3. Private treatment records also note this diagnosis. However, none of the Veteran's medical records, both VA and non-VA, note a diagnosis of kidney cancer, despite the Veteran's assertions. While kidney cancer is one of the enumerated diseases subject to presumptive service connection based on exposure to contaminants in the water supply at Camp Lejeune, the Veteran's chronic kidney disease, stage 3 is not. See 38 C.F.R. § 3.309 (f). Nonetheless, direct service connection can still be established. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In May 2017, March 2018, and June 2018, VA examiners provided negative opinions regarding the claimed relationship between the Veteran's kidney disease and his exposure to the contaminated water supply at Camp Lejeune. The opinions all seem to indicate that the Veteran did not start experiencing problems with his kidney until approximately 50 years after service. However, the Veteran and his attorney testified at the Board hearing that the Veteran started having problems with his kidney, including frequent and painful urination, while in service. See Board Hearing Transcript at 7. The Veteran stated that those problems gradually became worse, forcing him to eventually seek medical attention for the first time in the 1980s. See Board Hearing Transcript at 17. The Board finds that the VA medical opinions are inadequate because they mostly rely on a lack of showing of symptoms for kidney disease in service, which is not a complete bar to service connection. Moreover, the Veteran explained at the Board hearing that, although he had symptoms in service, he did not immediately seek treatment for those symptoms. The medical opinions also did not consider the Veteran's reports concerning the continuity of his symptoms, including statements that he started seeking treatment in the 1980s, many years before there was an official diagnosis of chronic kidney disease. Therefore, a remand is required to procure medical records pertaining to the Veteran's initial treatment for issues related to his kidney, and to obtain another VA medical opinion. As previously stated, the Veteran testified that he started seeking treatment in the 1980s, but those documents are not in his claims file. There is also no indication that those medical records were requested. The earliest VA treatment records in the Veteran's file are dated in December 1997. The earliest date with a documentation of complaint or treatment related to a kidney problem is in April 2003, when it was noted that the Veteran "has also noticed some kidney pain." The missing medical records could also shed some light on whether the Veteran had ever received a diagnosis of kidney cancer. It is also necessary to obtain medical opinions regarding whether the Veteran's scars and loss of vision in the left eye are secondary to his kidney cancer and/or kidney disease. The Veteran testified at the Board hearing that he has scars that resulted from surgery he underwent for his kidney disease. See Board Hearing Transcript, pp. 8-9. His treatment records also document an eye disability, which he asserts is related to his kidney disease. See, for instance, March 2018 VA Treatment Records. A TDIU As the Veteran's claim for a TDIU is related to his claims for service connection for kidney cancer, a kidney condition, and a loss of vision in his left eye, the issue of entitlement to a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain the entirety of the Veteran's VA and non-VA treatment records, including records related to treatment for urine and kidney problems since the 1980s, as the Veteran and his attorney testified at the October 2021 Board hearing that the Veteran started receiving treatment for problems related to his kidney since that time. See Board Hearing Transcript at 17. Pursuant to 38 C.F.R. § 3.159 (e), any efforts to secure these records must be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. Then, schedule the Veteran for VA examinations with appropriate clinicians to determine the nature and etiology of his claimed kidney cancer, kidney disease, scars, and loss of vision in the left eye. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this Remand, any available service treatment records, post-service medical records, and the Veteran's assertions. After evaluating and interviewing the Veteran, the examiner is asked to: a. Identify/diagnose any kidney condition that presently exists or that has existed during the appeal period, to include chronic kidney disease, stage 3, and kidney cancer. For all kidney conditions diagnosed, opine whether it is at least as likely as not (a 50 percent or greater probability) related to the Veteran's active service, to include his presumed exposure to the contaminated water supply at Camp Lejeune. b. Identify/diagnose any scars. Opine whether any such diagnosed scars are at least as likely as not (a 50 percent or greater probability) proximately due to (or the result of), or aggravated (made worse) by, kidney cancer or kidney disease. c. Opine whether the Veteran's loss of vision in his left eye is at least as likely as not (a 50 percent or greater probability) related to his active service, to include his presumed exposure to the contaminated water supply at Camp Lejeune. Opine whether the Veteran's loss of vision in his left eye is at least as likely as not (a 50 percent or greater probability) proximately due to (or the result of), or aggravated (made worse) by, his chronic kidney disease, stage 3; or any diagnosed kidney cancer. (Continued on the next page) The examiner is advised that the Veteran is competent to report his symptoms and history pertaining to his claimed disabilities and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions should be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination, if requested, may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, Associate 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.