Citation Nr: 0731470 Decision Date: 10/05/07 Archive Date: 10/16/07 DOCKET NO. 04-37 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for kidney stones. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Law Clerk INTRODUCTION The appellant is a veteran who served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the veteran submitted additional evidence after the RO had certified his appeal to the Board. The veteran submitted a waiver of RO consideration of the additional evidence through his accredited representative in September 2007. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The evidence of record as to whether the veteran's presently diagnosed kidney stones are a result of an established event, injury, or disease during active service is in equipoise. CONCLUSION OF LAW Kidney stones were incurred as a result of an event during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in June 2003. Because of the favorable outcome in this appeal, any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. Factual Background A December 2002 letter to the veteran from VA confirmed that the veteran was a participant in Project SHAD. Project SHAD, an acronym for Shipboard Hazard and Defense, was part of a larger effort called Project 112 which was a comprehensive program initiated in1962 by the Department of Defense to protect and defend against potential chemical and biological warfare threats. Project SHAD encompassed a series of tests by the Department of Defense to determine the vulnerability of U.S. warships to attack with chemical and biological warfare agents and the potential risk to American forces posed by those agents. The veteran was found to be a participant in the Copper Head Test. This test involved using aircraft to spray the USS Power with bacillus globigii and zinc cadmium sulfide. The USS Power was sprayed multiple times between January 24 and February 25, 1965. According to the Department of Defense Fact Sheet about Test Copper Head, after 30 to 40 years, it would be difficult to identify and exactly determine previous exposure to zinc cadmium sulfide. The veteran's service medical records are negative for any symptoms, diagnosis, or treatment for kidney stones. Private medical records dated from June 1976 through the present took an extensive history of kidney stones. Records show that in June 2003 the veteran brought information about possible toxic exposure while he was in the military to his private doctor, J.D.W., M.D., but the doctor thought it unlikely that the stone disease was caused by toxic exposure. On VA examination in September 2003, the veteran reported that he had passed 12 or 13 stones since 1975. The examiner reviewed the claims folder and noted a history of kidney stones. X-rays films revealed kidney stones in the left kidney and the possibility of kidney stones in the right kidney. Medical correspondence dated April 2004 from G.M.P., M.D., Professor, Urologic Surgery at Duke University, included research findings which linked cadmium exposure to kidney stone disease. The professor stated that while he could not definitively document that cadmium exposure was the cause of his stones, it could definitely have been a contributing factor. On VA examination in September 2004, the veteran reported the previous passing of 13 kidney stones with pain. He had a history of three previous lithotripsies, and at least one stone had been removed by cystoscopy. The examiner provided a diagnosis of nephrolithiasis, calcium oxalate type. The examiner further noted that although nephrolithiasis has been reported in patients who are exposed to zinc or cadmium which is one of the toxins to which the veteran was exposed, he could not state that the veteran's nephrolithiasis was related to that without resort to unfounded speculation. Dr. J.D.W. submitted additional correspondence in January 2006. After detailing the veteran's history and treatment for stone disease, the doctor revised his June 2003 opinion and stated that at the time was unaware of the connection between cadmium and stone disease. It was noted that the veteran was referred to Dr. G.M.P. at Duke University because Dr. G.M.P. was a national expert in stone disease and his recent research revealed a high incidence of multiple kidney stone formation among workers exposed to cadmium. Dr. J.D.W. agreed with Dr. G.M.P.'s conclusion that they could not definitely document that the veteran's cadmium exposure was a cause of his stones, but it could, "as likely as not" be a contributing factor. Law and Regulations In December 2003, Public Law 108-170, the Veterans Health Care, Capital Asset, and Business Improvement Act of 2003, was enacted. This law provides for veterans who participated in Project 112/SHAD Testing. This change was promulgated in April 2004, by the Veterans Health Administration (VHA) and made effective immediately. See VHA Directive 2004-016 (April 15, 2004). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Analysis Based upon a comprehensive review of the complete record, the Board finds the evidence of record as to whether the veteran's kidney stones had their onset during active service is in equipoise. In such cases, the benefit of the doubt is resolved in favor of the claimant. The service records and Project112/SHAD database verified that the veteran participated in Test Copper Head while serving aboard the USS Power. Test Copper Head involved the spraying of the USS Power with zinc cadmium sulfide multiple times. Private medical records dated from 1976 document the veteran's kidney stone disease. The VA examination dated September 2003 offered no etiology opinion concerning the stones. The Board notes that the September 2004 VA examiner could not provide a nexus between the veteran's present kidney stones and previous exposure to zinc cadmium sulfide without engaging in unfounded speculation. The Board also notes that Dr. J.D.W. and Dr. G.M.P. could not definitely document that the veteran's cadmium exposure was a cause of his kidney stones. Those statements are consistent with the Department of Defense Fact Sheet which stated that after 30 to 40 years it would be hard to identify people exposed or affected and determine their past exposures to zinc cadmium sulfide. The Board finds, however, that the April 2004 letter from Dr. G.M.P. and January 2006 letter from Dr. J.D.W. are persuasive. These letters acknowledged the difficulty in pinpointing an exact cause of the stones, but Dr. W stated that it was as likely as not that exposure to zinc cadmium sulfide was a contributing factor. Both doctors were specialists in urology, and Dr. P. had performed extensive research into the veteran's contentions before offering his opinion. Applying all reasonable doubt in the claimant's favor, the overall evidence in this case establishes that kidney stones were incurred in service. Therefore, entitlement to service connection for kidney stones is granted. ORDER Entitlement to service connection for kidney stones is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs