Citation Nr: 0810308 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-32 460A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for kidney removal and transplant. 2. Entitlement to service connection for diabetes mellitus as secondary to the kidney removal and transplant. 3. Entitlement to an increased evaluation for residuals of left great toe proximal phalanx avulsion fracture, currently evaluated as 20 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from February 1981 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for diabetes and kidney removal and granted a temporary 100 percent evaluation effective August 6, 2004 based on surgical or other treatment necessitating convalescence and assigned a 10 percent evaluation of 10 percent from October 1, 2004. By a rating decision dated August 2005, the RO increased the veteran's left great toe disability evaluation to 20 percent effective October 1, 2004. In January 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims folder. The issue of residuals of left great toe proximal phalanx avulsion fracture is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Kidney removal and transplant are not shown by competent medical evidence to have a nexus or relationship to service. 2. The veteran does not have diabetes mellitus that is either the result of a disease or injury in-service, or that is proximately due to or the result of a service-connected disease or injury. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute to the veteran's kidney removal and transplant. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. The veteran's claim of entitlement to service connection for diabetes mellitus, as secondary to his claimed kidney removal and transplant, lacks legal merit. 38 C.F.R. § 3.310 (2007); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Finally, applicable regulations provide that a disability, which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for the degree of aggravation to a nonservice- connected disorder, which is proximately due to, or the result of a service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Such claims may be described as secondary service connection by way of aggravation. The veteran claims that he was told during his induction examination that he had a great deal of excess protein in his urine which he was later told post service was an indication of kidney complications. The veteran's September 1980 enlistment examination noted normal clinical evaluation of the genitourinary (GU) system. The examination noted positive proteinura during urine testing; however, repeat testings were negative. Service medical records are negative for complaints, treatment, or diagnoses of kidney disease or hypertension. The veteran was seen for complaints of low back pain in November 1981. The assessment was muscle spasm. In February 1982 the veteran had complaints of shoulder and low back pain. The assessment was upper respiratory infection with back pain. In March 1982, the veteran was treated for muscle spasms in the lower back. In September 1982 the veteran was again seen for complaints of lower back pain. The veteran was tender in the area of the lateral left ribs. There was no flank pain. The examiner ruled out kidney pathology. The assessment was probable intercostal pain. The veteran's February 1983 separation examination noted normal clinical evaluation of the GU system. The urinalysis laboratory findings noted no abnormalities. Medical records from the University of Pennsylvania dated July 2004 to September 2004 indicated the cause of the end stage renal disease was hypertensive nephrosclerosis. It was noted that the veteran began hemodialysis in 1996 through 1999. He had a kidney transplant in October 1999 and was relatively stable until the spring of 2004. Renal transplant rejection was notable and he was admitted with end stage renal disease and renal failure. He began hemodialysis in the hospital. It was also noted the veteran was being treated with oral hypoglycemic and insulin for his diabetes mellitus type 2. Social Security Administration (SSA) medical records show that the veteran began treatment for kidney disease in 1992. It was noted in the SSA records that in 1993, the veteran underwent a kidney biopsy which showed focal global glomerulosclerosis, severe, with severe interstitial fibrosis. The etiology of the renal disease was not clear; the treating physician nephrologist felt that drug abuse may well have played a role. Hemodialysis was ultimately required starting in September 1996. In October 1999, the veteran underwent a kidney transplant. University of Pennsylvania medical records also suggest a link between treatment for the veteran's hepatitis C with interferon and his renal disease. At his January 2008 Board video conference hearing, the veteran testified that he was not exposed to any chemicals while in service. The veteran stated that while stationed in Germany he went to sick call and he was told that he had too much protein in his urine. He testified that he was not treated for any kidney aliment while in service. He stated he received treatment after service for his kidney disorder in around 1990. He indicated he started dialysis in 1996 and had been on hypertension medication prior to the dialysis. The veteran had a kidney transplant in October 1999. The veteran stated the transplant lasted five years and he went back on dialysis in 2004. The veteran testified that he believed that his diabetes was the result of his kidney failure. He was diagnosed with diabetes in 2000. He indicated he started receiving SSA disability beginning in 1996 up until his kidney transplant and then again in 2004. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for kidney removal and transplant. Although the veteran's enlistment examination noted proteinuria on urinalysis testing, subsequent testings were negative. There was no medical evidence of abnormal urinalysis or a kidney disorder during the veteran's service. The veteran's separation examination to include urinalysis was negative. In addition, there was no evidence of hypertension in service. The first evidence that the veteran was treated for his kidney disease was in 1992, approximately nine years after separation from service. This period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Treatment records from the University of Pennsylvania show an unclear etiology concerning the veteran's kidney disease. Drug abuse and interferon treatment for hepatitis C have also been noted as possible causes; however, there is no medical opinion of record that indicates that kidney disease and the subsequent transplant were related to any disease or injury in military service. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to that effect; lay assertions of medical status, such as the veteran's statements in support of claim, do not constitute competent medical evidence of the diagnosis or etiology of the claimed disability. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran's testimony that laboratory results of proteinuria on initial testing and resultant kidney disease over nine years later has been considered, but as a lay person he would not be competent to opine as to the cause of the current kidney disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the veteran did not indicate that medical records showed further urinalysis testing was negative and that urinalysis upon separation from service was negative. Therefore, his lay assertions of medical causation and etiology, absent corroboration by objective medical evidence and opinions, are of extremely limited probative value towards establishing a link between the veteran's military service and his kidney removal and transplant. Again, the Board finds that to attribute the veteran's onset of kidney disease and transplant to active military service without objective medical evidence would require speculation. As the preponderance of the evidence is against the claim for service connection for kidney removal and transplant, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). As discussed above, service connection may be granted on a secondary basis if a claimed disability is found to be proximately due to or is the result of a service-connected disability. The veteran's claim of entitlement to service connection for diabetes mellitus is premised upon the prospect of his having secured a grant of service connection for his kidney removal and transplant. The veteran's claim of entitlement to VA benefits for his kidney removal and transplant have been denied by the Board. In the absence of the primary disability, the secondary service connection claim obviously fails. As there is no medical evidence of diabetes mellitus while in service or within one year of separation from service, the veteran's claim is not warranted on a direct basis. Because the veteran's claim for service connection for kidney removal and transplant has been denied, there is no basis upon which to grant service connection for diabetes mellitus on a secondary basis. Because the law, and not the facts, is dispositive of the issue, the veteran has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in September 2004 of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA informed the claimant of the need to submit all pertinent evidence in his possession. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. The veteran also provided testimony in support of his claims at a January 2008 Board video conference hearing. The veteran was provided specific notice of how disability ratings and effective dates are assigned as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), in September 2007. The timing of this notice is harmless in this instance because the preponderance of the evidence is against the appellant's claim for service connection for kidney removal and transplant and diabetes, and any questions as to the appropriate disability rating or effective date to be assigned is moot. In addition, VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. The veteran's service medical records, VA treatment records, and private medical records have been associated with the claims folder. The Board notes that no medical examination has been conducted or medical opinion obtained with respect to the veteran's claims. However, the Board finds that the evidence, which does not reflect competent evidence showing a nexus between service and the disorder at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4). As post-service medical records provide no basis to grant this claim, and in fact provide evidence against this claim, as medical evidence note hypertension, drug abuse, and interferon therapy as possible etiologies. The Board finds no basis for a VA examination or medical opinion to be obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the outcome of this claim hinges on what occurred, or more precisely what did not occur, during service. In the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the veteran's claimed disability would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. The holding in Charles was clearly predicated on the existence of evidence of both in- service incurrence and of a current diagnosis. Simply stated, referral of this case for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See also 38 U.S.C.A. § 5103A(a)(2). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Entitlement to service connection for kidney removal and transplant is denied. Entitlement to service connection for diabetes mellitus, claimed as secondary to kidney removal and transplant is denied. REMAND Records show that the veteran has not had a VA examination to determine the severity of his service connected residuals of left great toe proximal phalanx avulsion fracture since his August 2004 cheilectomy. Therefore, the veteran should be scheduled for a VA medical examination. Accordingly, the case is REMANDED for the following action: 1. Schedule an examination for the veteran's residuals of left great toe proximal phalanx avulsion to evaluate the current state of this service-connected disability. All pertinent tests and studies should be conducted. The claims folder should be made available to the examiner. 2. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit is not granted, the veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The RO is advised that they are to include any further changes in VCAA and any other applicable legal precedent. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs