Citation Nr: 1430825 Decision Date: 07/09/14 Archive Date: 07/15/14 DOCKET NO. 08-16 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder. 2. Whether new and material evidence has been received to reopen a claim for service connection for a chronic kidney disorder. 3. Entitlement to service connection for non-Hodgkin's lymphoma, right pelvic wall (claimed as kidney cancer). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty in the military from June 1971 to March 1978. This appeal to the Board of Veterans' Appeals (Board) is from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran also requested a Travel Board hearing, but subsequently failed to appear to appear for the hearing scheduled for November 2011. He did not offer an explanation or request to reschedule his hearing. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2013). The appeal was remanded in April 2012. FINDINGS OF FACT 1. Evidence received since the January 1979 RO decision denying service connection for a back disability does not relate to an unestablished fact necessary to substantiate the claim. 2. Evidence received since the January 1979 RO decision denying service connection for a kidney disability does not relate to an unestablished fact necessary to substantiate the claim. 3. Non-Hodgkin's lymphoma did not have its onset during service, or within one year of separation, nor was non-Hodgkin's lymphoma, diagnosed in 2005, related to any suspected kidney or bladder conditions for which the Veteran was treated in service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a back disability; the January 1979 rating decision remains final. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has not been received to reopen the claim for service connection for a kidney disability; the January 1979 rating decision remains final. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 3. Non-Hodgkin's lymphoma was not incurred in or aggravated by service, nor may service incurrence of gouty arthritis be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a letter dated in November 2006, prior to the adjudication of the claims, the RO notified the Veteran of the information necessary to substantiate his claims, including the application to reopen the previously denied claims, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was told that the evidence must show a relationship between his current disability and an injury, disease or event in military service. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claims. The letter also provided information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition, this letter explained the bases for the previous denial of the claims, and that new and material evidence had to relate to those factors. See Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). With respect to the duty to assist, service treatment records have been obtained. VA records, consisting of a VA examination in September 1978, have been obtained. Identified private records were obtained, except for records from two physicians, Dr. Sharma and Dr. Schieley. The case was remanded in April 2012 to obtain necessary authorizations (VA Form 21-4142) and other information to enable VA to obtain the medical treatment records from Dr. Schieley, Dr. Sharma, and any other outstanding private treatment records. He was told that he could provide copies of the records himself. He was sent a letter in compliance with this directive in April 2012, but he did not respond. The RO was also directed to issue a follow-up to its January 2007 request for records from Dr. Sharma, and to obtain an updated VA Form 21-4142, if necessary. No follow-up request was made, but an updated VA Form 21-4142 was requested from the Veteran; the last one had been dated in 2006. The Veteran did not respond with an updated VA Form 21-4142. Thus, there has been substantial compliance with the prior remand. A VA medical examination is not warranted because, in connection with a claim to reopen, VA does not have a duty to obtain a medical opinion if the claim is not reopened, regardless of any assistance provided to the claimant. 38 U.S.C.A. § 5103A(f) (West 2002); 38 C.F.R. § 3.159(c)(4)(C)(iii) (2013). Concerning the claim for service connection for non-Hodgkin's lymphoma, an examination is not warranted because there is no evidence indicating the non-Hodgkin's lymphoma was present in service or for many years thereafter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual Background Evidence of record at the time of the January 1979 rating decision included service treatment records, which did not show any pertinent complaints on the June 1971, enlistment examination. In February 1972, eight months after he entered onto active duty, he reported swelling of the hands. He said he had had a kidney infection a year ago, and had occasional swelling of the feet. Physical examination was essentially negative except for moderate puffiness of the hands. The assessment was a question of nephrosis, and urinalysis and blood studies were to be obtained. When seen for follow-up two days later, it was noted that he felt fine, did not have any swelling at the current time, and blood studies and urinalysis had been normal. In December 1972, a four year history of intermittent swelling of the hands, which lasted approximately 2 hours before subsiding, was noted. He denied any other edema, rash, or itching. Previous workup for cardiac or renal abnormality had been negative, and the assessment at that time was allergic reaction. In February 1976, the Veteran complained of frequent urination and burning during urination, with no discharge. He had itching in the groin area. He also complained of pain in the lower back of three days duration. On examination, there was some tightening of the lower back muscles on both sides, thought to be possibly a pulled back muscle. Several days later, it was noted that he had been placed on medication for a urinary tract infection, but that he still complained of dysuria and low back pain. He still had some costovertebral angle (CVA) tenderness. In April 1976, he complained of hematuria for two days. He also had low back pain and burning upon urination. The pain was present with extensive exercise. On examination, there was pain to palpation bilaterally in the kidney area with some pain in the bladder, without distention, with some CVA tenderness. It was thought that the that he possibly had "floating kidneys." A KUB (abdominal X-ray of the kidney, ureter, and bladder) was normal. Later in April 1976, he was referred for a urogram due to the history of two urinary tract infections with hematuria in the past two months, and current presence of edema of the fingers and ankles. The excretory urogram was noted to be normal. However, the fingers on both hands were swollen on examination, and the assessment included rule out renal dysfunction. An IVP (intravenous pyelogram) and cystogram in April 1976 were normal. In May 1976, he again complained of swelling of the hands and fingers, which had never gone away. A urology consult was completed, and the findings were within normal limits. In November 1976, the Veteran complained of low back pain with a slight discharge of pus immediately post urination, for about a week to a week and a half. The assessment was rule out prostatitis. He was referred for a urology consult. In addition to his discharge, he complained of low back pain of 10 days duration. The prostate was normal with no urethral discharge after massage. Urologic examination revealed normal urethra. In January 1977, the Veteran complained of a rash in the groin area. On a dermatology consult in February 1977, it was noted that he had multiple pustules on the scrotum initially the end of December, and had been treated without improvement. On examination, he had multiple tender folliculitis lesions on the scrotal sac, as well as enlarged femoral lymph nodes. The assessment was folliculitis. In April 1977, it was noted that he was still being treated for multiple tender folliculitis lesions on the scrotal sac and enlarged lymph nodes. He also had a fungal infection. In May 1977, the rash was noted to be clearing. In June 1977, he complained of lower back pain, which was sore to the touch, as well as pain in the lower quadrant. From October 1977 to January 1978, the Veteran was evaluated for complaints including dysuria, flank pain, abdominal pain, and back pain. A KUB in October 1977, disclosed a calcific density in the left pelvis above the level of the interval spine. There was also a questionable density around the ureter on the left. Incidentally noted was a transitional L5 vertebra with what is suspected to be a new arthrosis on the left. He was thought to possibly have kidney stones (urethrolisthiasis, nephrolisthiasis). In December 1977, he also was noted to have spasms in the lower lumbar spine. An IVP in January 1978, was normal. Clinical impressions noted during this time indicated interstitial cystitis, chronic urinary tract infection, or chronic prostatitis were suspected. On the separation examination in January 1978, the Veteran reported "yes" to the question of whether he had ever had, or had now, "frequent or painful urination," "kidney stone or blood in urine," and "recurrent back pain." The separation examination noted chronic prostatitis. In February 1978, a cystoscopy was noted to be normal, and the diagnosis was chronic prostatitis. Also of record with a VA examination conducted in September 1978, which revealed a normal genitourinary system. Diagnoses were status post back injury by history, with no gross evidence of disability. X-ray of the lumbosacral spine in September 1978 showed scoliosis of the lumbar spine to the right. The left transverse process of L5 was considerably larger than the right transverse process, which may be responsible for the scoliosis. In addition, status post transient hematuria of unknown origin for three days in 1976, with no recurrence or residuals was noted. Based on this evidence, the RO denied the Veteran's claims in January 1979 on the basis that the evidence did not show current kidney or back disabilities. He was granted service connection for chronic prostatitis. The RO also stated that the scoliosis was a constitutional and developmental abnormality, and, as such, not a disease or injury within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Evidence received since then includes medical records dated from March 2005 to December 2006, received from Drs. Ryan, Hoffman, Heslin, and Farmer. These records show that in December 2004, the Veteran began noticing right lower extremity swelling, which, initially, was not significant. In February 2005, however, his leg became significantly swollen, and he sought medical treatment. Work-up eventually disclosed non-Hodgkin's lymphoma in the right pelvic wall, and he underwent chemotherapy; as of the most recent record, dated in December 2006, his non-Hodgkin's lymphoma was in remission. III. New and Material Evidence As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). In general, a decision of the Board or the RO that is not appealed within the prescribed time period is final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2002 & Supp. 2013). Moreover, no additional relevant evidence or information was received concerning the issue during the succeeding year. Therefore, the September 2005 rating decision is final. 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103 (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened, and if so reopened, the claim will be reviewed on a de novo basis. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 27 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "[T]he determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material." See Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court further explained in Shade that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element. The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). A. Back Disability The evidence previously of record showed that the Veteran was seen on several occasions during service for symptoms that included back pain. The only diagnosis, however, was of a finding of scoliosis described as incidental. No back abnormality was noted on the separation examination although he reported recurrent back pain. Similarly, the VA examination in September 1978, noted a history of back injury, without gross evidence of disability, as well as the finding of scoliosis with a large left transverse process of L5. The RO found that there was no back disability and that the scoliosis was a congenital condition. Evidence received since then includes the Veteran's statements that he has been treated Drs. Sharma, Ryan, Hoffman and Heslin over the years for strained back muscles. He said these doctors' records show that he has a chronic condition. However, medical records dated from March 2005 to December 2006, received from Drs. Ryan, Hoffman, Heslin, and Farmer, do not show any mention of back complaints or abnormal findings. These records primarily show evaluation, treatment, and follow-up for non-Hodgkin's lymphoma, but no history of back pain was noted. In March 2005, the Veteran was noted to have no significant bone pain. The reports of radiographic studies, including a CT scan and a PET scan in May 2005, did not note the incidental scoliosis which had been shown in service. As discussed above, Dr. Sharma's records were not obtained, but the treatment records on file show that the Veteran was referred to Dr. Sharma as a pulmonary specialist for a consult concerning pulmonary symptoms. The Veteran's statement that he has a back disability manifested by recurrent back pain was considered by the RO in the 1979 decision. Current statements reiterating such contentions are not new evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). The medical evidence identified by the Veteran as supporting his claim by showing a back disability do not indicate any back complaints or abnormal findings. Thus, there is no new evidence of the presence of a back condition. The claim for service connection for a back disability has not been reopened, as no new or material evidence has been received. 38 U.S.C.A. § 5108. The January 1979 rating decision remains final. 38 U.S.C.A. § 7105. B. Kidney Disability The Veteran contends that he was been treated for a chronic kidney disability throughout the years, for which he had been treated by Drs. Sharma, Ryan, Hoffman and Heslin. He said that he felt that his chronic kidney condition was misdiagnosed as a bladder condition during service, but that a Dr. Schieley stated that it was really a kidney condition he was suffering from all along. As discussed above, he did not submit or authorize VA to obtain records from Dr. Schieley. Evidence previously of record showed that the Veteran was seen in service for a number of symptoms, which were never conclusively diagnosed, and work-ups on each occasion were ultimately normal or non-specific. The VA examination after service, in September 1978, did not find a kidney condition to be present. Evidence received since then includes the Veteran's assertion that he has had a chronic kidney disability through the years. However, none of the medical evidence he identified as documenting such condition, which VA was able to obtain, shows kidney disease, or a history of kidney disease. This includes during the work-up of symptoms ultimately diagnosed as non-Hodgkin's lymphoma. The medical history obtained in March 2005 by Dr. Farmer, an oncologist, noted a history of unknown bladder surgery, and no mention of any history involving a kidney condition. Moreover, no bladder or kidney conditions were disclosed in the course of the work-up of the Veteran's non-Hodgkin's lymphoma, including on several radiographic studies of the abdomen. In sum, the claim was denied in 1979 on the basis that a current kidney condition was not present, and the evidence received since, which includes extensive evaluations of the abdominal region in the process of diagnosing, staging, and treating non-Hodgkin's lymphoma in 2005 and 2006, did not disclose a kidney disability. Absent the current existence of a claimed condition there may be no service connection. Degmetich v. Brown, 104 F.3d 1328 (1997). Accordingly, the claim for service connection for a kidney disability has not been reopened, as no new or material evidence has been received. 38 U.S.C.A. § 5108. Accordingly, the January 1979 rating decision remains final. 38 U.S.C.A. § 7105. IV. Service Connection for Non-Hodgkin's Lymphoma Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, to establish service connection, the evidence 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 or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for certain chronic diseases, such as malignant tumors, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may also be established for a disorder which is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(c) (2013); see Allen v. Brown, 8 Vet. App. 374 (1995). Concerning the first element, the Veteran was diagnosed as having non-Hodgkin's lymphoma in 2005, and subsequently treated with chemotherapy. The first element is met. However, pertinent symptoms were first reported in December 2004, which was 26 years after service. The Veteran argues that his symptoms in service, thought to be a kidney or bladder condition, were misdiagnosed in service, continued after he got out of the military, and ultimately caused the non-Hodgkin's lymphoma. He said he had been diagnosed with a spot on his bladder while on active duty, and was told by a doctor that he would probably be diagnosed with cancer in his mid-40's due to this condition. He said that he was passing blood through his urine and they could never figure out why. Consideration has been given to the Veteran's personal assertion concerning the etiology of his non-Hodgkin's lymphoma. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether non-Hodgkin's lymphoma is related to urinary tract symptoms shown in service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Non-Hodgkin's lymphoma is not the type of condition that is readily amenable to mere lay diagnosis. Here, the extensive work-up for non-Hodgkin's lymphoma did not include any mention of a history of kidney or bladder symptoms. Such would work against any argument of continuity of symptomatology. He said he had been diagnosed with a spot on his bladder while on active duty, and was told by a doctor that he would probably be diagnosed with cancer in his mid-40's due to this condition. The Veteran is competent to state what a physician has told him. However, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Here, he is attempting to recollect events which reportedly occurred decades earlier. The physicians in service did not report that any of their findings may increase the Veteran's risk of cancer in the future. Moreover, the Board finds it significant that the Veteran did not mention such symptoms during the course of the extensive work-up for non-Hodgkin's lymphoma. Thus, the Board finds that the Veteran, although sincere, is mistaken as to his recollection concerning this statement. As to the spot on the bladder, he was thought to have a possible kidney stone in 1977, but such was not shown on evaluation in January and February 1978. In any event, there is no competent evidence linking such a finding to non-Hodgkin's lymphoma demonstrated many years later. Although the Veteran did exhibit symptoms including passing blood in his urine, for which a definitive diagnosis was never determined during service, there is no indication that any symptoms shown in service were related to the non-Hodgkin's lymphoma shown many years later. The Veteran himself is not competent make such an assertion, and the medical evidence does not suggest that any kidney or bladder symptoms which may have been present during service was causally implicated in the non-Hodgkin's lymphoma. For instance, when evaluated in March 2005, the only pertinent symptom he reported was a history of some unknown form of bladder surgery at some remote, unidentified time. In sum, the Veteran's diagnosis of non-Hodgkin's lymphoma in 2005 resulted from extensive work-up, including a detailed history obtained from the Veteran. The only potentially relevant history he provided was of unknown bladder surgery, but this was not suggested to be a potential cause or symptom of non-Hodgkin's lymphoma. There is no competent evidence indicating that non-Hodgkin's lymphoma was caused or aggravated by the in-service symptoms. In view of these factors, the claim for service connection for non-Hodgkin's lymphoma must be denied. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER The application to reopen a claim for service connection for a back disability is denied. The application to reopen a claim for service connection for a kidney disability is denied. Service connection for non-Hodgkin's lymphoma is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs