Citation Nr: 23007167 Decision Date: 02/03/23 Archive Date: 02/03/23 DOCKET NO. 18-38 758A DATE: February 3, 2023 REMANDED Service connection for renal cell carcinoma (RCC) is remanded. REASONS FOR REMAND The Veteran has active service from August 1950 to August 1972, including service in the Republic of Vietnam. This matter is on appeal from a January 2018 rating decision. A hearing was not requested. This matter was previously remanded in January 2021 and May 2021. 1. Service connection for RCC is remanded. Regrettably, remand of this matter is necessary to clarify an October 2021 VA medical opinion. Specifically, as explained below, the opinion indicates the VA examiner mistakenly believed the Veteran's in-service exposure to contaminants and the causal nexus between that exposure and the Veteran's RCC were presumed in this case. As a result, the VA examiner must now clarify the basis for their opinion concerning service connection to ensure their conclusions comply with the law and evidence. The Veteran seeks service connection for his RCC on the basis that his disease is the result of his exposure to contaminated water at Camp Lejeune. Generally, to establish service connection a veteran must show: (1) the existence of a disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009). In this case, the first element has been establishedthe VA has acknowledged the Veteran's RCC. Turning then to the second element, a veteran is presumed to have been exposed to contaminants in the base water supply if they served at Camp Lejeune between August 1, 1953 and December 31, 1987, and that exposure is considered an in-service injury. 38 C.F.R. §§ 3.307(a)(7)(iii), 3.307(a)(7)(iv). Furthermore, as to the third element, if a veteran serving at Camp Lejeune during that period develops kidney cancer, the VA presumptively considers the disease to have been incurred in or aggravated by service. 38 C.F.R. §§ 3.307(a), 3.307(a)(7)(iv), 3.309(f)(1). As such, if the presumptions of exposure and in-service incurrence applied in this case, that would be sufficient to establish both the second and third elements of service connection. Unfortunately, they do not. The Veteran served at Camp Lejeune from April 18, 1952 to March 4, 1953, departing several months before the presumptive period began. Therefore, the presumptions of exposure and incurrence do not apply, and this appeal cannot be granted unless competent, relevant evidence demonstrates a connection between the Veteran's service and his RCC on a "facts found" basis. See, e.g., Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) ("veterans must either show that connection directly or show entitlement to the [applicable statutory] presumption...."). A remand is thus necessary to ascertain whether the VA examiner who provided the October 2021 VA medical opinion found service connection based solely on presumptions versus relying on the evidence of record. At present, the evidence of record concerning service connection includes two conflicting medical opinions. The aforementioned October 2021 VA medical opinion concludes the Veteran's RCC is at least as likely as not related to service, but that conclusion must be discounted pending clarification. The VA examiner expressly stated, "Since RCC is presumptively associated with exposure to water at Camp Lejeune, NC, it is my opinion that it is at least as likely as not...that Mr. [REDACTED] RCC is related to military service." Emphasis added. The VA examiner's statement is patently incorrectthere is no presumptive association between exposure to Camp Lejeune's water and RCC applicable to the period of the Veteran's service there. 38 C.F.R. § 3.307(a)(7)(i). Furthermore, in addition to the explicit application of the causation presumption, the VA examiner may have implicitly applied the exposure presumption as wellthat is, an association between contaminants in the water at Camp Lejeune and the Veteran's RCC is relevant only insofar as the Veteran was exposed to those contaminants. The medical opinion is silent as to how the VA examiner determined the Veteran was exposed to contaminants, but to whatever extent they presumed exposure based on 38 C.F.R. § 3.307(a)(7)(iii), they erred. In summary, the face of the October 2021 VA medical opinion suggests the finding of a nexus between the Veteran's service and his disability rests on a false premise, and absent clarification, it carries little probative weight. In contrast, the medical opinion from September 2021 expressly did not apply any presumption concerning the water at Camp Lejeune, and it concluded the Veteran's RCC is less likely than not related to exposure to contaminants during his service there. Rather, based on peer-reviewed medical literature and the Veteran's full medical history, the examiner concluded his RCC is more likely the result of the Veteran's "smoking history, hypertension, age, and gender ...." The examiner also notes the latency period of 62 years between the Veteran's service at Camp Lejeune and his cancer diagnosis is "unexplainably long" if the latter is causally related to the former. VA has a duty to seek clarification of medical opinions when "the missing information...bears greatly on the probative value of the [otherwise inadequate] examination report." Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). Thus, a remand is necessary to give the October 2021 VA medical examiner an opportunity to provide a rationale for concluding the Veteran's RCC was caused by his service other than the erroneously applied presumptions, which could significantly bolster the probative value of the October 2021 examination report. The most recent VA treatment medical records associated with the Veteran's file are dated November 2022. A remand is also necessary to obtain updated medical records. Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records from November 2022 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, the examiner who provided the October 2021 VA medical opinion should: 3. Provide a clarifying opinion as to the basis for determining the Veteran was exposed to contaminants during his service at Camp Lejeune; 4. Provide a clarifying opinion as to the basis for determining the Veteran's RCC was causally related to his exposure to contaminants; and, 5. Provide other amendments or additions to the October 2021 VA medical opinion as appropriate, based on the evidence. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resorting to speculation, they should explain why this is so. If the examiner who provided the October 2021 VA medical opinion is unavailable, the above clarifications should be provided by an appropriate substitute.