Citation Nr: 0015931 Decision Date: 06/15/00 Archive Date: 06/22/00 DOCKET NO. 94-13 552 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left kidney disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a gall bladder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from December 1950 to May 1954. By rating actions in March and April 1956, the Wilkes-Barre, Pennsylvania RO denied service connection for a gall bladder disability, characterized as cholecystitis and cholelithiasis. The veteran was notified of these denials by letters dated in March and April 1956 which included notices of his right to request VA Form P-9 if he wished to appeal. In April 1956 a letter was received from the veteran wherein he requested that he be provided with VA form P-9. In May 1956 the RO provided the veteran with VA Form P-9 and instructed him to complete the form and return it if he wanted to appeal; however, he failed to return the appeal form and those actions became final. See Veterans Regulation No. 2(a), pt. II, par. II; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936 to December 31, 1957. In September 1994, the veteran requested that the claim for entitlement to service connection for a gall bladder disability be reopened. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1995 determination by the St. Petersburg, Florida RO, which determined that the veteran had not submitted new and material evidence to reopen a claim for service connection for a gall bladder disability. This matter also comes before the Board on appeal from a March 1995 rating decision by the St. Petersburg, Florida RO, which denied service connection for a left kidney disability, characterized as atrophy of the left kidney. In May 1999, a hearing was held at the RO before C.W. Symanski, who is the member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). An August 1999 Board decision denied service connection for a left kidney disability and found that new and material evidence had not been submitted to reopen a claim for service connection for a gall bladder disability. Subsequent to the August 1999 decision, the Board determined that evidence was received by the Board in July 1999, prior to the August 1999 decision, but had not been associated with the claims file for the Board's review at that time. Because consideration of the veteran's claims in the August 1999 decision was not based on the complete record, the Board has vacated the August 12, 1999 decision pursuant to 38 C.F.R. § 20.904(a). FINDINGS OF FACT 1. The claim for entitlement to service connection for a left kidney disability is not accompanied by any medical evidence to support those allegations. 2. The claim for entitlement to service connection for a left kidney disability is not plausible. 3. Entitlement to service connection for a gall bladder disability was denied by rating decisions dated in March and April 1956; the veteran did not appeal these denials. 4. Additional evidence submitted since April 1956 does not tend to show the presence of current disability related to service and is not so significant that it must be considered in order to decide fairly the merits of the claim. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a left kidney disability is not well grounded. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. March and April 1956 rating actions that denied service connection for a gall bladder disability are final. Veterans Regulation No. 2(a), pt. II, par. II; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936 to December 31, 1957. 3. Evidence received since April 1956 is not new and material, and the veteran's claim for service connection for a gall bladder disability has not been reopened. 38 U.S.C.A. §§ 1110, 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Kidney Disability Factual Background A December 1950 enlistment examination report notes no complaints or findings of a left kidney disability. The veteran was found to be physically qualified for full military duty. Service medical records show that during active service there were no complaints or findings of a left kidney disability. An April 1954 separation examination report notes no complaints or findings of a left kidney disability. At the time of the separation examination, the veteran completed a report of medical history at which time, in response to a question as to whether he had or had ever had a kidney stone or blood in his urine, he responded in the negative. VA examination reports and treatment records dated from 1954 to 1956 are negative for complaints or findings of a left kidney disability. An April 1959 VA special dermatology examination report notes the veteran's complaints of stomach pains. The veteran felt that he had stones in his kidney. He indicated that he had been treated for kidney stones in 1958 by a private physician. No clinical findings were noted relative to the kidneys. VA outpatient treatment records dated from 1992 to 1994 note that the veteran was seen for various disabilities, to include a kidney disability. Specifically, a November 1992 outpatient treatment report notes that a CT scan revealed an atrophic left kidney, with calcification compatible with a renal stone. In addition, a calcified density, compatible with a ureteral stone, was noted. A January 1993 outpatient treatment record notes that an ultrasound of the left kidney was compatible with a moderate degree of cortical atrophy and evidence consistent with renal calculi. A February 1993 treatment record notes findings of a one centimeter radiopaque stone projected in the middle third of the left kidney. Another irregular radiopaque stone, also measuring one centimeter, was noted in the left paravertebral region, at the tip of the left transverse process of L2. The veteran submitted a claim for service connection for atrophy of the left kidney in August 1994. The veteran maintained that this disability was the result of kidney stones that first occurred during his military service. He reported that test results in 1992 and 1993 showed kidney stones, an 80 percent loss of kidney function and atrophy of the left kidney. VA outpatient treatment records dated from 1995 to 1996 note that the veteran continued to be seen with atrophy of the left kidney. The veteran testified during a May 1996 personal hearing that one Friday evening in the spring of 1953 he developed an intense pain on his left side and a slight temperature, and passed a kidney stone. The veteran further testified that he went to the clinic on Monday morning and was diagnosed with possible kidney stones and elevated blood pressure. He was told to return to the clinic if he found blood in his urine. The veteran stated that he had no further problems until 1992, when he was diagnosed with atrophy of the left kidney. The veteran reported that Dr. Greenberg of the Fort Myers VA Clinic indicated that the kidney atrophy was "of long duration." The veteran testified during a May 1999 Travel Board hearing that during his military service he "passed a kidney stone and . . . passed some blood." He indicated that he was examined a few days later, but by that time he was feeling "reasonably O.K." He stated that he was told to return to the clinic if he passed any more blood or stones. The veteran testified that he did not return and had no problems until 1992, when it was discovered that he had a loss of kidney function. The veteran further testified that Dr. Mary Charlton of the Fort Myers VA Clinic indicated that his kidney atrophy was possibly the result of kidney stone disease. During the course of the hearing, it was agreed that the record would be kept open for 60 days in order to allow the veteran the opportunity to obtain medical evidence in support of his claims. A July 1999 statement from Dr. Mary Charlton of the Fort Myers VA Clinic notes that the veteran had requested that his file be reviewed and that an opinion be rendered as to the cause of his left kidney damage. Dr. Charlton noted that the veteran reported passing kidney stones in 1953. In addition, Dr. Charlton noted that all imaging studies since 1993 report renal calculi in the left kidney, atrophy of the left kidney and decreased renal function in the left kidney. In contrast, no renal calculi were reported to be present in the right kidney, which was reported to have normal renal functioning. Dr. Charlton stated, "I would suspect that the [veteran's] depressed [l]eft renal function and atrophy occurred as a complication of his original renal calculi disease." Analysis Service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 7104 (West 1991). Moreover, where a veteran served continuously for ninety days or more after December 31, 1946 and calculi of the kidney becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Notwithstanding such presumption, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claimant seeking benefits under a law administered by the Secretary of the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). As explained below, the Board finds that the appellant's claim for service connection for a left kidney disability is not well grounded. To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy, supra. To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in-service injury or disease and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). With the above in mind, the Board notes that the veteran's service medical records do not show any diagnosis referable to a kidney disorder; upon separation, the veteran reported that he had no history of kidney stones or blood in the urine. Moreover, there is no diagnosis of calculi of the kidney during the one-year presumptive period following the veteran's separation from active service in May 1954. In April 1959, the veteran reported that a private physician had treated him for kidney stones in 1958. The earliest medical evidence of a diagnosis of a kidney disorder is a 1992 VA outpatient treatment report. The only evidence which purports to link current kidney disease to the veteran's service is his own statements and the opinion expressed in a 1999 statement from Dr. Charlton, wherein she relates the veteran's left kidney atrophy and depressed renal function to his "original" renal calculi disease in 1953. Although this evidence does facially create a nexus to service, it is clear that no competent medical evidence has been presented to show that the veteran currently suffers from any left kidney disability that is attributable to his military service or to continued symptoms since service. The veteran has reported on several occasions that he had kidney stones during his military service. However, lay statements, such as the veteran's own assertions, are not competent evidence in this matter. As a layperson, the veteran does not have the expertise to establish a medical diagnosis or to comment upon etiology. Layno v. Brown, 6 Vet. App. 465 (1994). The United States Court of Appeals for Veterans Claims has held that evidentiary assertions must be accepted as true for purposes of determining whether the claim is well grounded, except when the fact asserted is beyond the competence of the person making the assertion. Robinette v. Brown, 8 Vet. App. 69, 80 (1995). Lay assertions of medical diagnosis or etiology do not constitute competent evidence sufficient to render a claim well grounded. Layno, supra; Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Where, as here, the determinative issue involves medical etiology, competent medical evidence that the claim is plausible is required in order for the claim to be well grounded. Turning to Dr. Charlton's opinion, it is noted that this opinion was predicated on the veteran's history of having passed a kidney stone during service. Certainly, the veteran as a layperson is not competent to diagnose his own condition. Dr. Charlton only related the veteran's history that he had passed a kidney stone in service and this opinion was not enhanced by any additional medical comment as to whether the veteran did, in fact, have a kidney stone in service. Simply put, the doctor did not testify as to the facts under consideration. In the case of LeShore v. Brown, 8 Vet. App. 406 (1995) the Court stated: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute 'competent medical evidence' satisfying the Grottveit requirement. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette (as to determination of well groundedness)....because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional. LeShore at 409. Accordingly, it is clear that no competent medical evidence has been presented which tends to prove that the veteran has a left kidney disability that is related to service. Moreover, while the requirement that there be a nexus between a current disability and service may be satisfied by a presumption that calculi of the kidney manifested itself to a compensable degree within a year of service, evidence tending to show that this has been the case has not been submitted. Caluza, supra. Gall Bladder Disability March and April 1956 rating decisions denied the veteran's claim for service connection for a gall bladder disability, characterized as cholecystitis and cholelithiasis, on the basis that no gall bladder disability was demonstrated during service or during the presumptive period thereafter. Although the veteran was given written notification of these determinations in March and April 1956, and was supplied with a VA Form P-9 in May 1956, a timely appeal was not thereafter received. The rating decisions, therefore, became final. Veterans Regulation No. 2(a), pt. II, par. II; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936 to December 31, 1957. The claim, however, will be reopened if new and material evidence has been submitted since the last final decision on the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The issue of new and material evidence must be addressed in the first instance by the Board because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Once the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Id. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or by the RO). In determining whether new and material evidence has been submitted, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Under applicable regulation: [n]ew and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Evans v. Brown, 9 Vet. App. 273 (1996). It should also be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Second, if it is determined that the evidence is new and material, the Board must reopen the veteran's claim and evaluate the merits of that claim in light of all the evidence, both old and new. Masors v. Derwinski, 2 Vet. App. 181, 185 (1992). At the time of the April 17, 1956 rating decision, the RO had before it for consideration: the veteran's service medical records, including an April 1954 separation examination, which are negative for complaints or findings of a gall bladder disability; a June 1954 VA examination report that is negative for complaints or findings of a gall bladder disability; VA hospitalization reports dated from February 1956 to April 1956, which note the veteran's complaints of episodic abdominal pain since 1953 and diagnoses of cholecystitis and cholelithiasis; and a statement from the veteran's private physician dated in April 1956, which notes that he first treated the veteran for gall bladder disease in February 1956, at which time the veteran reported a previous attack in August 1954. Upon consideration of this evidence, the RO denied service connection for a gall bladder disability, holding that no gall bladder disability was demonstrated during service or during the presumptive period thereafter. The April 1956 rating decision was not appealed and became final. In September 1994, the veteran requested that the claim for entitlement to service connection for a gall bladder disability be reopened. The newly submitted evidence includes an April 1959 VA examination report, VA outpatient treatment records dated from 1992 to 1996, a transcript from a May 1996 personal hearing, service medical records received by the RO in 1997, a transcript from a May 1999 Travel Board hearing, and a July 1999 statement from a VA physician. The 1959 VA examination report and 1999 statement from a VA physician note diagnoses for disabilities not herein at issue. No complaints or findings of a gall bladder disability were noted. As the examination report and statement are not material to the claim at hand, they do not afford a basis upon which the veteran's claim may be reopened. The VA outpatient treatment records note that the veteran was seen for various complaints from 1992 to 1996. The veteran's history of gall bladder removal was noted; however, no current complaints or findings of a gall bladder disability were noted. The treatment records do not tend to demonstrate the onset or aggravation of a gall bladder disability in service, or otherwise relate a gall bladder disability to service. As these records are not material to the claim at hand, they do not afford a basis upon which the veteran's claim may be reopened. Service medical records received by the RO in February 1997 include records that are duplicative of those considered by the RO in April 1956. The remaining records, including an April 1954 report of medical history, are negative for complaints or findings of a gall bladder disability. As these records are not material to the claim at hand, they do not afford a basis upon which the veteran's claim may be reopened. In addition, the other newly submitted evidence includes transcripts from a May 1996 personal hearing and a May 1999 Travel Board hearing. In his testimony, the veteran essentially contended that he began having nausea, gas and pain in his stomach during service. Approximately three months after service, he became severely ill after eating broiled seafood but did not see a physician at that time. Ultimately, gallstones were found in 1956 and his gall bladder was removed. These statements are essentially duplicative of allegations previously made and considered. Moreover, lay assertions of medical causation do not suffice to reopen a claim under 38 U.S.C.A. § 5108. Moray v. Brown, 5 Vet. App. 211, 214 (1993). In short, because the veteran's opinion is not supported by medical expertise, it is not probative of the issue at hand, namely whether the veteran has a current disability which is attributable to service. Therefore, the statements do not afford a basis upon which the veteran's claim may be reopened. ORDER Entitlement to service connection for a left kidney disability is denied. New and material evidence not having been submitted, the claim for service connection for a gall bladder disability is not reopened. C. W. SYMANSKI Member, Board of Veterans' Appeals