Citation Nr: 0813023 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-01 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a kidney disability. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for residuals of mononucleosis, to include Epstein-Barr virus and chronic fatigue syndrome. 4. Entitlement to an initial compensable disability rating for prostate hyperplasia. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD B. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from March 1970 to April 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2006, the veteran testified at videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was before the Board in November 2006, the Board granted the veteran's petition to reopen the claim of entitlement to service connection for a kidney disability. That claim and claims of entitlement to service connection for sinusitis and residuals of mononucleosis were remanded for further development. The case now has been returned to the Board for further appellate consideration. The issue of entitlement to an initial compensable disability rating for prostate hyperplasia is addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. The veteran does not have kidney disability. 2. The veteran does not have sinusitis. 3. The veteran does not have residuals of mononucleosis. CONCLUSIONS OF LAW 1. A kidney disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Sinusitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 3. Residuals of mononucleosis, to include Epstein-Barr virus and chronic fatigue syndrome, were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA also must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the RO provided the veteran with adequate VCAA notice in a letter mailed in August 2003, prior to the initial adjudication of the claims. Although he was not specifically informed in this letter that he should submit any pertinent evidence in his possession, he was informed of the evidence that would be pertinent and requested to submit such evidence or to provide the information and any authorization necessary for the RO to obtain the evidence on his behalf. Therefore, the Board believes that this letter put him on notice of the fact that he should submit any pertinent evidence in his possession. In any event, a December 2006 letter specifically requested him to submit all pertinent evidence in his possession. Although the veteran was not provided notice of the type of evidence necessary to establish a disability rating or effective date until April 2006, after the initial adjudication of the claims, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for any of the claimed disabilities. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claims is no more than harmless error. The record also reflects that the veteran has been afforded a VA examination. In an April 2008 statement, the veteran's representative requested that he be afforded a new examination. The representative noted that a certified physician's assistant performed the August 2007 examination, although the Board's November 2006 remand stated that the veteran should be examined by a physician. However, the Board finds that the August 2007 VA examination report provides a sufficient basis upon which the claims may be decided and that there is no reasonable possibility that another examination would substantiate any of the claims. In this regard, the Board notes the August 2007 report is comprehensive and reflects the examiner's review and consideration of the claims file, the veteran's reported medical history, and current laboratory and other clinical findings. Moreover, there is no medical evidence of record that contradicts the conclusions set forth in the report. The Board also notes that the veteran's service medical records and post-service treatment records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate any of the claims. The Board also is unaware of any such outstanding evidence. Therefore, the Board is satisfied that originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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); 38 C.F.R. § 3.102 (2007); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Sinusitis and Kidney Disability The veteran contends that service connection is warranted for sinusitis and for a kidney disability because they are related to service. At the May 2006 hearing, he testified that he has had both disabilities since active duty and that he continues to receive treatment for them. A thorough review of the medical evidence of record reveals, however, no current diagnosis of sinusitis or any kidney disability. With respect to the veteran's kidneys, service medical records confirm that he was diagnosed with hematuria in service and that kidney stones were suspected, although no tests were done to confirm their presence. In a January 1978 report of medical history prepared prior to his release from active duty, the veteran indicated that he had a history of kidney stones or blood in the urine. The veteran also was treated for hematuria and kidney stones after service. Private treatment records dated in December 1996 and October 1997 note that he had hematuria and a right ureteropelvic obstruction. There is no medical evidence, however, that the veteran currently has a kidney disability. An intravenous pyelogram performed in May 2000 revealed no calcified calculi in either kidney and no evidence of ureteropelvic dysfunction. A May 2004 VA outpatient treatment record notes that the veteran reported that he last experienced kidney stones eight years ago, and a May 2006 private treatment record indicates that he denied having any kidney infections or kidney stones. Moreover, the August 2007 VA examiner specifically stated that there was no current evidence of any kidney function issues. With respect to sinusitis, service medical records reflect that was diagnosed with frontal sinusitis in 1970. He reported a history of sinusitis in a January 1978 report of medical history prepared prior to his release from active duty. A January 1995 private treatment record contains a diagnosis of chronic sinusitis, and private treatment records dated in 1999 note a history of sinus problems. A diagnostic assessment of persistent rhinosinusitis was rendered in a December 2004 VA outpatient treatment record. There is no medical evidence that the veteran currently has a diagnosis of sinusitis. In May 2006 private treatment records, he denied post-nasal drip, pain, or pressure in his sinuses. Physical examination revealed normal nasal mucosa, septum, and turbinates, and no diagnosis of sinusitis was rendered. The August 2007 VA examiner also did not render a diagnosis of sinusitis. After reviewing the claims file and physically examining the veteran, she diagnosed chronic rhinitis, which she noted was aggravated by a continuous positive airway pressure (CPAP) machine used to treat the veteran's sleep apnea. While the Board acknowledges that the veteran had kidney- related conditions and sinusitis in the past, the medical evidence of record establishes that he currently does not have these disabilities. The law is well-settled that in order to be granted service connection, a claimant first must have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Accordingly, in the absence of a current diagnosis of either sinusitis or a kidney disability, service connection is not warranted. Mononucleosis The veteran contends that service connection is warranted for residuals of mononucleosis because they are related to service. At the May 2006 hearing, he testified that he has experienced fatigue, shortness of breath, and weakness since he was diagnosed with mononucleosis in 1970. Service medical records confirm that the veteran was hospitalized and diagnosed with infectious mononucleosis in 1970. The subsequent medical evidence of record contains no additional reference to mononucleosis but does reflect ongoing complaints of fatigue and weakness. In a August 1999 private treatment record, it was noted that the veteran complained that he felt weak and lacked energy. He reported feeling "terrible all of the time," according to a May 2004 VA outpatient treatment record. A June 2005 VA record notes that he complained of feeling "worn out" in the mornings. His wife reported that at night he experienced apneic periods and snoring, and a sleep study was recommended. A May 2006 private treatment record indicates that the veteran complained of lacking energy since his bout of mononucleosis in 1970, and a diagnostic assessment of chronic Epstein-Barr viral infection with associated chronic fatigue syndrome was rendered. The veteran was afforded a VA examination in August 2007. The examiner was asked to opine regarding whether the veteran had residuals of mononucleosis, to include the Epstein-Barr virus or chronic fatigue syndrome. After reviewing the claims file and performing a physical examination, the examiner opined that the veteran's complaints of fatigue were not caused by mononucleosis because the symptoms associated with mononucleosis, including fatigue, typically resolve within one year. The examiner stated that it was more likely than not that one of the veteran's other medical conditions, including sleep apnea and post-traumatic stress disorder, caused his chronic fatigue. There is no contrary medical opinion of record. The Board acknowledges that the veteran believes his chronic fatigue, weakness, and shortness of breath are the result of his mononucleosis infection in 1970. However, as a lay person with no medical training, the veteran is not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The VA examiner also stated that the veteran does not meet the criteria for chronic fatigue syndrome but that laboratory findings indicated that he has either a chronic or reactivated Epstein-Barr virus infection. However, neither the August 2007 VA examination report nor the May 2006 private treatment record indicates that the veteran's current Epstein-Barr viral infection is related to his 1970 episode of mononucleosis. Again, while the veteran may believe that his Epstein-Barr virus infection is related to mononucleosis, he is not qualified to render a medical opinion. Accordingly, in the absence of medical evidence showing that the veteran currently has residuals of mono, service connection is not warranted. ORDER Service connection for a kidney disability is denied. Service connection for sinusitis is denied. Service connection for residuals of mononucleosis, to include Epstein-Barr virus and chronic fatigue syndrome, is denied. REMAND The veteran was granted service connection and a noncompensable disability rating for prostate hyperplasia in a December 2007 rating decision. He filed a notice of disagreement with this decision in February 2008 but has not been provided with a statement of the case in response. Because the notice of disagreement placed the issue in appellate status, the matter must be remanded for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C., for the following actions: 1. The RO or the AMC should issue a statement of the case on the issue of entitlement to an initial compensable disability rating for prostate hyperplasia and inform the veteran and his representative of the requirements to perfect an appeal with respect to this issue. 2. If the veteran perfects an appeal with respect to this issue, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board for further appellate action. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs