Citation Nr: 1036628	
Decision Date: 09/28/10    Archive Date: 10/05/10

DOCKET NO.  07-05 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUES

1.   Entitlement to service connection for renal failure.

2.  Entitlement to an increased evaluation above 20 percent for 
osteoarthritis of the left (minor) acromioclavicular joint.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the 
United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from March 1990 to March 1994.

This matter comes to the Board of Veterans' Appeals (Board) on 
appeal from a February 2006 rating decision by the St. 
Petersburg, Florida, Regional Office (RO) of the Department of 
Veterans Affairs (VA), which denied the Veteran's claims of 
entitlement to service connection for renal failure and 
entitlement to an increased evaluation above 20 percent for 
osteoarthritis of the left (minor) acromioclavicular joint.

The Veteran's osteoarthritis of the left (minor) 
acromioclavicular joint is his only service-connected disability 
at the present time.

The Veteran and his representative appeared at the RO in April 
2010 to present oral testimony in support of his claims at a 
hearing before the undersigned traveling Veterans Law Judge.  A 
transcript of this hearing has been obtained and associated with 
the Veteran's claims file for consideration by the Board.

For the reasons that will be further discussed below, the issue 
of entitlement to an increased evaluation above 20 percent for 
osteoarthritis of the left (minor) acromioclavicular joint is 
REMANDED to the RO via the Appeals Management Center (AMC), in 
Washington, D.C., for additional evidentiary development.  VA 
will notify the Veteran and his representative if any further 
action is required on their part.


FINDING OF FACT

Renal failure was did not have its onset during active duty.


CONCLUSION OF LAW

Renal failure was not incurred, nor is it presumed to have been 
incurred, during active military service.  38 U.S.C.A. §§ 1110, 
1111, 1112, 1113, 1131, 1137 (West 2002);  38 C.F.R. §§ 3.303, 
3.307, 3.309 (2009).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Entitlement to service connection for renal failure.

The Board notes at the outset that, in accordance with the 
Veterans Claims Assistance Act of 2000 (VCAA), VA has an 
obligation to notify claimants what information or evidence is 
needed in order to substantiate a claim, as well as a duty to 
assist claimants by making reasonable efforts to get the evidence 
needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see 
also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

With respect to the claim of entitlement to service connection 
for renal failure, generally, the notice requirements of a 
service connection claim have five elements: veteran status, 
existence of a disability, a connection between the veteran's 
service and the disability, degree of disability, and effective 
date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 
(2006).  VCAA notice must also: (1) inform the claimant about the 
information and evidence necessary to substantiate the claim; (2) 
inform the claimant about the information and evidence that VA 
will seek to provide; (3) inform the claimant about the 
information and evidence the claimant is expected to provide; and 
(4) request that the claimant provide any evidence in his 
possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 
38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 
(2005) (outlining VCAA notice requirements).  During the course 
of the appeal, § 3.159(b) was revised and the requirement that VA 
request that the claimant provide any evidence in his possession 
that pertains to the claim was removed from the regulation.

The claim of entitlement to service connection for renal failure 
decided herein stems from the Veteran's application for VA 
compensation for this disability, which was filed in August 2005.  
VCAA notice letters addressing the applicability of the VCAA to 
service connection claims and of VA's obligations to the Veteran 
in developing such claims were dispatched to the Veteran in 
October 2005, January 2008, February 2008, and May 2008, which 
collectively address the issue on appeal and satisfy the above-
described mandates, as well as the requirements that the Veteran 
be informed of how VA calculates degree of disability and assigns 
an effective date for the disability, as prescribed in Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  To the extent that the 
Veteran asserts that there is a defect in the timing of the 
notice as fully complaint notice did not precede the initial 
adjudication of the Veteran's claim, the later notices were 
followed by a subsequent readjudication, most recently in a July 
2008 rating decision/supplemental statement of the case, thereby 
curing the defective notice error.  See Prickett v. Nicholson, 
20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant 
VCAA notification followed by readjudication of the claim, such 
as a statement of the case or supplemental statement of the case, 
is sufficient to cure a timing defect).  

VA also has a duty to assist the Veteran in obtaining evidence 
necessary to substantiate the claims.  38 U.S.C.A. § 5103A(a) 
("The Secretary shall make reasonable efforts to assist a 
claimant in obtaining evidence necessary to substantiate the . . 
. claim").  This duty includes assisting the Veteran in obtaining 
records and providing medical examinations or obtaining medical 
opinions when such are necessary to make a decision on the claim.  
38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's 
various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining 
records and supportive evidence.  In this regard, the Board 
observes that the Veteran's service treatment records as well as 
relevant post-service VA, Social Security Administration (SSA), 
and private medical records for the period spanning 1999 - 2009 
have been obtained and associated with the claims file.  The 
Board is satisfied upon review of the evidence of record that the 
evidence is sufficiently developed for appellate adjudication of 
the service connection claim decided herein.  The Board notes 
that the Veteran and his representative have been provided with 
ample opportunity to submit additional evidence in support of the 
service connection claim up to the time when the case was 
received by the Board in May 2010.  Per the appellant's request, 
at the April 2010 Board hearing, the undersigned Veteran's Law 
Judge held the record open for an additional 60 days to permit 
submission of additional supportive evidence.  However, neither 
the Veteran nor his representative have indicated that there are 
any outstanding relevant post-service medical records or other 
pertinent evidence that must be considered in this current appeal 
with respect to the issue decided herein.  

The Board notes that the Veteran was provided with a VA 
examination in February 2008, addressing the service connection 
claim presently on appeal.  The examiner had reviewed the 
Veteran's clinical history and submitted a nexus opinion 
predicated upon this review.  The Board finds no defect with the 
examination report that would render it unusable for VA rating 
purposes and thus concludes it to be adequate for purposes of 
adjudicating the present appeal.  See Barr v. Nicholson, 21 Vet. 
App. 303, 311-12 (2007).     

Based on the foregoing, the Board finds that the VA fulfilled its 
VCAA duties to notify and to assist the Veteran in the 
evidentiary development of his service connection claim decided 
herein, and thus no additional assistance or notification is 
required.  The Veteran has suffered no prejudice that would 
warrant a remand, and his procedural rights have not been 
abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The 
Board will therefore proceed with the adjudication of this 
appeal.

The Board has thoroughly reviewed all the evidence in the 
Veteran's claims file. Although the Board has an obligation to 
provide reasons and bases supporting this decision, there is no 
need to discuss, in detail, the evidence submitted by the 
appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) (the Board must review the entire 
record, but does not have to discuss each piece of evidence).  
The analysis below focuses on the most salient and relevant 
evidence and on what this evidence shows, or fails to show, on 
the claims.  The appellant must not assume that the Board has 
overlooked pieces of evidence that are not explicitly discussed 
herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the 
law requires only that the Board address its reasons for 
rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all 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.  Equal weight is not accorded to each 
piece of evidence contained in the record; every item of evidence 
does not have the same probative value.  When all the evidence is 
assembled, VA is responsible for determining whether the evidence 
supports the claim or is in relative equipoise, with the 
appellant prevailing in either event, or whether a preponderance 
of the evidence is against a claim, in which case, the claim is 
denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection involves many factors, but basically means 
that the facts, shown by the evidence, establish that a 
particular injury or disease resulting in disability was incurred 
coincident with service, or if pre-existing such service, was 
aggravated therein.  This may be accomplished by affirmatively 
showing inception or aggravation during service or through the 
application of statutory presumptions.  38 C.F.R. § 3.303(a) 
(2009).

In order to establish service connection for a disability, there 
must be (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 current disability.  See Hickson v. West, 12 Vet. 
App. 247, 253 (1999).

Where a veteran served continuously for 90 days or more during a 
period of war, or during peacetime service after December 31, 
1946, and certain diseases, such as cardiovascular-renal disease, 
become manifest to a degree of 10 percent or more within one year 
from date of termination of such service, such disease shall be 
presumed to have been incurred in or aggravated by service, even 
though there is no evidence of such disease during the period of 
service.  See 38 U.S.C.A. §§ 1111, 1112, 1113, 1137 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009).

With chronic disease shown as such in service (or within the 
presumptive period under 38 C.F.R. § 3.307 (2009)) so as to 
permit a finding of service connection, subsequent manifestations 
of the same chronic disease at any later date, however remote, 
are service connected, unless clearly attributable to 
intercurrent causes.  This rule does not mean that any 
manifestation of abnormal kidney or urinary tract symptoms in 
service will permit service connection for renal failure, first 
shown as a clear-cut clinical entity, at some later date.  For 
the showing of chronic disease in service there is required a 
combination of manifestations sufficient to identify the disease 
entity, and sufficient observation to establish chronicity at the 
time, as distinguished from merely isolated findings or a 
diagnosis including the word "chronic."  When the disease 
identity is established, there is no requirement of evidentiary 
showing of continuity.  Continuity of symptomatology is required 
only where the condition noted during service (or in the 
presumptive period) is not, in fact, shown to be chronic, or 
where 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) (2009).  
Service connection may be granted for any disease diagnosed after 
discharge from active duty when all the evidence, including that 
pertinent to service, establishes that the disease was incurred 
in service.  38 C.F.R. § 3.303(d) (2009).

If there is no evidence of a chronic condition during service or 
an applicable presumptive period, then a showing of continuity of 
symptomatology after service may serve as an alternative method 
of establishing the second and/or third element of a service 
connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 
Vet. App. 488 (1997).  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.  Evidence 
of a chronic condition must be medical, unless it relates to a 
condition to which lay observation is competent.  If service 
connection is established by continuity of symptomatology, there 
must be medical evidence that relates a current condition to that 
symptomatology.  See Savage, 10 Vet. App. at 495-98.

It is the defined and consistently applied policy of VA to 
administer the law under a broad interpretation, consistent, 
however, with the facts shown in every case.  When, after careful 
consideration of all procurable and assembled data, a reasonable 
doubt arises regarding service origin, the degree of disability, 
or any other point, such doubt will be resolved in favor of the 
claimant.  By reasonable doubt is meant one which exists because 
of an approximate balance of positive and negative evidence which 
does not satisfactorily prove or disprove the claim.  It is a 
substantial doubt and one within the range of probability as 
distinguished from pure speculation or remote possibility.  See 
38 C.F.R. § 3.102 (2009).

At his April 2010 hearing, the Veteran testified, in pertinent 
part, that he did not experience any symptoms indicative of 
kidney or urinary tract disease in service, and that his earliest 
recollection of being diagnosed with kidney problems was 
approximately in 1998 - 1999.  He has since been diagnosed with 
renal failure with kidney transplant in 2006.  According to the 
Veteran, he had been informed by his treating physicians that his 
kidney disease was associated with his non-service-connected 
hypertension.  He testified that during active duty, he was 
involved in six motor vehicle accidents, for which he was 
observed and treated thereafter for external injuries.  He 
expressed his belief that he sustained an internal injury and 
scarring to his kidneys from the in-service vehicle accidents 
that escaped detection and led to his current renal failure.  He 
reported that a physician at the Miami VA Medical Center mused on 
the possibility that this was what happened, but did not proffer 
any formal opinion on the record in this regard.  

The Veteran's service treatment records show, in pertinent part, 
no indication of onset of chronic kidney disease during active 
duty.  His enlistment examination in September 1990 and 
separation examination in February 1994 show normal clinical 
findings on genitourinary examination and urinalysis, with no 
proteinuria or reported history of kidney or urinary tract 
symptoms.  The clinical records from service also show no 
diagnosis of, or treatment for, any chronic or acute kidney or 
genitourinary syndromes or injuries.  Although there are several 
notations for treatment of back pain, all were for pain of 
musculoskeletal or orthopedic origin and none of these relate to 
back pain as a symptom of kidney trouble.  The records show only 
two incidents relating to treatment for injuries associated with 
motor vehicle accidents, the first being in September 1993 when 
the Veteran was treated for removal of small glass splinters in 
his left eye after the rear window of the truck he was driving 
shattered after striking the rear window of another truck he was 
passing.  The second incident occurred in February 1994, when the 
Veteran (whose military occupational specialty was as a fighting 
vehicle infantryman) was riding in the rear compartment of an 
armored fighting vehicle which got struck in the rear by another 
armored fighting vehicle.  The Veteran was treated for muscular 
low back pain in February - March 1994 and placed on physical 
profile.  No kidney injury was indicated in the service records.

Army National Guard medical records show that on examination in 
March 1995, the Veteran was normal on genitourinary examination 
and urinalysis, with no proteinuria or reported history of kidney 
or urinary tract symptoms.  

Post-service clinical records show, in pertinent part, that the 
Veteran was diagnosed with renal osteodystrophy and 
glomerulosclerosis in January - April 2004 and end-stage renal 
disease (chronic renal failure) in July 2005.  In October 2005, 
he was diagnosed with a history of end-stage renal disease of 
unknown etiology.  In May 2006, he underwent kidney transplant 
surgery using a kidney donated by his brother.  SSA records show 
that he was deemed disabled for purposes of SSA disability 
benefits as of May 2006 due to kidney failure.          

According to a May 2006 private treatment report, the Veteran 
apparently had a history of proteinuria in 1985, which caused him 
to be rejected in his initial bid for admission into military 
service.  Proteinuria evidently did not reoccur afterwards, as he 
re-applied for enlistment in 1990 and was accepted for service, 
where he served for four years in active duty, followed by four 
years in the National Guard, with no further finding of 
proteinuria in the annual physical examinations conducted 
pursuant to this service.  Several years post-service, the 
Veteran had a clinical history that was significant for 
hypertension and chronic renal insufficiency.  A June 2004 biopsy 
confirmed a diagnosis of focal segmental glomerulosclerosis.  He 
began kidney dialysis treatments in June 2005.  

The report of a February 2008 VA genitourinary examination shows, 
in pertinent part, that the Veteran's clinical history was 
reviewed by the examiner, who diagnosed the Veteran with renal 
failure secondary to focal sclerosing glomerulosclerosis, status 
post renal transplant.  Although the examiner noted in her report 
that the Veteran was not asserting that his kidney disease was 
secondary to his service-connected left shoulder disability (his 
only service-connected disability), the examiner nonetheless 
presented the opinion that it was less likely than not that any 
such etiological relationship existed.  The examiner further 
stated that the Veteran's end-stage renal disease (renal failure) 
"is secondary to focal sclerosing glomerulosclerosis (and that 
it) is important to recognize that focal sclerosing 
glomerulosclerosis is a relatively nonspecific histological 
finding (whose) etiology can be idiopathic or it can be observed 
in a variety of secondary settings and/or with known causes."

The Board has considered the evidence described above and finds 
that the weight of the evidence is against the Veteran's claim of 
entitlement to service connection for renal failure.  The Board 
finds that the total absence of any clinical evidence of onset of 
chronic renal disease during the Veteran's service or 
manifestation of chronic renal disease to a compensable degree 
within the one year presumptive period following his separation 
from active duty in March 1994, with no objective medical opinion 
linking his current renal disease to service, is overwhelming 
evidence against allowing his claim for VA compensation for this 
disability.  

The Board has considered the Veteran's assertion that he 
sustained an internal kidney injury during vehicle accidents in 
service that escaped detection and was later manifest post-
service as renal failure.  However, there is no medical opinion 
presented in the clinical evidence that indicates that his renal 
failure was the result of a traumatic injury during service.  In 
fact, if anything, the medical opinions of record indicate that 
the Veteran's kidney disease is of unknown origin.  To the 
extent that the Veteran seeks to link his current kidney disease 
to service based solely on his own personal knowledge of 
medicine and his medical condition, there is nothing in the 
record that establishes him to be a trained medical 
professional.  Per his hearing testimony of April 2010, he was 
employed as a custodian.  He therefore lacks the expertise to 
comment upon medical observations or make diagnoses and opinions 
regarding matters of medical causation and etiology and his 
statements in this regard are thus entitled to no probative 
weight.  See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).

Therefore, in view of the foregoing discussion, the Veteran's 
claim of entitlement to service connection for renal failure is 
denied.  Because the evidence in this case is not approximately 
balanced with respect to the merits of the claim, the benefit-of-
the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 
2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).


ORDER

Service connection for renal failure is denied.


REMAND

With respect to the claim for an increased evaluation for 
osteoarthritis of the left (minor) acromioclavicular joint, the 
Veteran presented oral statements at his April 2010 hearing 
attesting that his service-connected left shoulder disability has 
worsened since the time of the most current VA examination of this 
orthopedic condition in April 2007.  As the objective findings on 
examination in April 2007 are now over three years old and, in 
view of the statements of the Veteran indicating that his left 
shoulder symptoms have become worse over the course of the ensuing 
time since this last examination of record, the Board finds it 
appropriate to remand this issue so that the Veteran may be 
scheduled for a new medical examination to assess the current 
state of his service-connected orthopedic disability.  See 
Weggenmann v. Brown, 5 Vet. App. 281 (1993).  The scheduled 
examination should also include discussion from the examiner of 
any functional loss of the left shoulder due to pain, 
incoordination, weakness, or fatigability, pursuant to 
38 C.F.R. §§ 4.40, 4.45 (2009) and controlling opinion of the 
United States Court of Appeals for Veterans Claims in the case of 
DeLuca v. Brown, 8 Vet. App. 202 (1995).

Accordingly, in view of the foregoing discussion, the case is 
REMANDED to the RO via the AMC for the following action:

1.  The Veteran should be contacted and asked 
to provide detailed information regarding all 
sources of medical treatment, both VA and 
private, for his left shoulder disability.  
After obtaining the necessary waivers where 
appropriate, the RO should attempt to obtain 
copies of those medical records identified by 
the Veteran which have not already been made 
a part of the evidence for inclusion in his 
claims file.

2.  Following completion of the above, the 
Veteran should be scheduled for the 
appropriate clinical examination to evaluate 
the current severity of his service-connected 
osteoarthritis of the left (minor) 
acromioclavicular joint.  The Veteran's 
claims file should be provided to the 
examiner in conjunction with the examination.  
All tests and studies deemed appropriate to 
assess the severity of this orthopedic 
disability should be conducted.  

The examiner should address the following 
question:  Is there limitation of motion of 
the left shoulder on abduction to 25 degrees 
or less from the side?  In this regard, the 
examiner should consider the effects of 
functional loss due to pain, incoordination, 
weakness, or fatigability.  Medical 
determinations should be made regarding 
whether the Veteran's affected left 
acromioclavicular joint exhibits pain on use, 
weakened movement, excess fatigability, 
incoordination, or any other disabling 
symptom.  Specifically, the examiner must be 
asked to express an opinion on whether pain 
could significantly limit functional ability 
during flare-ups or when the joint is used 
repeatedly over a period of time.  These 
determinations should, if feasible, be 
portrayed in terms of the degree of 
additional range-of-motion loss due to pain 
on use or during flare-ups beyond that 
clinically demonstrated.

Pertinent documents in the claims folder must 
be reviewed by the VA examiner, who should 
provide a complete rationale for any opinion 
given without resorting to speculation, 
reconciling any conflicting medical opinions 
rendered.  Any additional examinations, 
tests, or studies necessary for an adequate 
opinion should be conducted.  

3.  The Veteran is hereby reminded of his 
obligation to appear for the scheduled 
examination.  His failure to appear may 
result in the disallowance of this claim.  
See 38 C.F.R. § 3.655 (2009).

4.  After undertaking any other development 
deemed essential in addition to that 
specified above, the RO should readjudicate 
the Veteran's claim for an increased 
evaluation above 20 percent for 
osteoarthritis of the left (minor) 
acromioclavicular joint, with application of 
all appropriate laws and regulations and 
consideration of any additional information 
obtained as a result of this remand.  If the 
maximum benefit with respect to this issue is 
not granted, the Veteran and his 
representative should be provided with a 
supplemental statement of the case and given 
an appropriate amount of time to respond.  
Thereafter, the case should be returned to 
the Board, if in order.

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. 2009).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs