Citation Nr: 0812285 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-37 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. 2. Entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran had active service from January 1970 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In a June 2005 rating decision, the RO, in part, denied the veteran's claim for entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition on the basis that the material submitted was not new and material. In a June 2007 supplemental statement of the case (SSOC), the RO reopened and then confirmed and continued the denial of the veteran's claim for entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. The Board notes that even if an RO makes an initial determination to reopen a claim, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104(b) to review the RO's preliminary decision and must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board will first determine whether new and material evidence has been submitted. If new and material evidence has been received, the Board will reopen the claim and consider entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. FINDINGS OF FACT 1. In a March 1974 rating decision, the RO denied entitlement to service connection for right kidney problems, repeated kidney infections, right ureteral reimplantation and constant right flank pain. The veteran did not file a timely appeal with respect to this issue. 2. Evidence received since the March 1974 rating decision relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. 3. The veteran's has a current kidney disability that is causally related to service. CONCLUSIONS OF LAW 1. The March 1974 decision which denied entitlement to service connection for right kidney problems, repeated kidney infections, right ureteral reimplantation and constant right flank pain, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103. (2007). 2. Evidence received since the March 1974 decision is new and material and the claim of entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The criteria for service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition are met. 38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the appellant in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision to reopen and grant the claims, further assistance is unnecessary to aid the veteran in substantiating her claims. I. Whether new and material evidence has been submitted to reopen a claim for service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. Analysis A March 1974 rating decision denied service connection for right kidney problems, repeated kidney infections, right ureteral reimplantation and constant right flank pain on the basis that there was no abdominal tenderness and no CVA tenderness found on a February 1974 examination. The RO essentially found that a current disability was not shown. The veteran did not appeal the March 1974 rating decision within a year, and it is final. 38 U.S.C.A. § 7105. Accordingly, the veteran is required to submit new and material evidence to reopen the claim for service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. 38 U.S.C.A. § 5108. In February 2005, the veteran filed an application to reopen the claim for entitlement to service connection. For applications to reopen received after August 21, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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). Evidence received since the March 1974 decision includes a June 2007 VA examination. The VA examiner noted that the veteran had residual right kidney scarring and atrophy that were based on a review of a medical chart. The veteran also had increased renal insufficiency with increased blood urea nitrogen (BUN) Creatine ratio. The June 2007 VA examiner's statement pertains to the previously unestablished element of a current disability, and raises a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been submitted and the claim for service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition is reopened. II. Entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition. Applicable laws and regulations in service connection claims Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The veteran's service medical records are significant for treatment of recurrent urinary tract infections with right pyelonephritis on numerous occasions. In an April 1973 treatment note, the veteran reported recurrent bouts of urinary tract infections for the last year and a half. The diagnosis was recurrent urinary tract infections. In February 1974 the veteran underwent a VA examination. The examiner stated that the veteran had a history of a recurrent urinary tract infection with a right pyelonephritis. The veteran underwent a right ureteral reimplantation. There had been no episodes of frequency, urgency or dysuria since her surgery. There was a well healed scar but no abdominal tenderness, masses or spasm. There was no CVA tenderness. In September 2006 the veteran underwent a renal ultrasound at the Hampton, Virginia VA Medical Center (VAMC). No definite abnormalities were demonstrated. In June 2007 the veteran underwent a VA examination. The examiner noted that the veteran had right pyelonephritis and urinary tract infections from 1971 to 1973. The veteran reported that her residual functional impairment was that she still urinated quite frequently as a result from the scarring of her kidneys. She underwent right ureteral reimplantation in 1973 as a result of urethral stenosis. While the examiner stated that the veteran's conditions of right pyelonephritis for urinary tract infections and urethral stenosis had resolved, she noted that the veteran had residual right kidney scarring atrophy as well as renal insufficiency with increased BUN Creatine ratio. The examiner also noted that the veteran's hypertension was due to kidney scarring and atrophy of the kidney, which was secondary to recurrent episodes of pyelonephritis, reflux and urethral stenosis. The examiner stated that all of the veteran's conditions are service related. She concluded that the veteran's recurrent episodes of pyelonephritis and urinary tract infections resulted in kidney scarring and atrophy. Analysis The veteran's service medical records are significant as they show treatment for recurrent urinary tract infections. Therefore, the element of an in-service injury is satisfied. The June 2007 VA examiner stated that while the right pyelonephritis, urinary tract infections and urethral stenosis had resolved; the veteran had residual right kidney scarring atrophy as well as renal insufficiency with increased BUN Creatine ratio. There is, thus, competent evidence of a current disability. The June 2007 VA examination provides competent evidence of a link between a current kidney condition and service. Specifically, the June 2007 VA examiner stated that the veteran's kidney scarring and atrophy of the kidney were service related. There is no competent opinion to the contrary. Resolving reasonable doubt in the veteran's favor, the evidence shows a kidney condition in service, a continued kidney condition and a relationship between the current disability and service. Accordingly, entitlement to service connection is established. 38 U.S.C.A. § 5107(b) (West 2002). ORDER New and material evidence has been submitted and the claim for service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition is reopened.. Entitlement to service connection for history of right pyelonephritis, recurrent urinary tract infection, and urethral stenosis, claimed as a kidney condition is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs