Citation Nr: 1300318 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-40 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction of the disability rating for left shoulder tendonitis from 10 percent to noncompensable, effective April 1, 2009, was proper. 2. Entitlement to service connection for acute kidney failure, to include as due to hypertension. 3. Entitlement to an increased disability rating for hypertension with ventricular hypertrophy, currently rated as 10 percent disabling. 4. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from February 1999 to February 2005. This matter comes to the Board of Veterans' Appeals (Board) from September 2008 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims concerning hypertension with ventricular hypertrophy and headaches are addressed in the REMAND section of this decision and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. A September 2008 rating decision proposed a reduction of the evaluation of the Veteran's left shoulder tendonitis from 10 percent to noncompensable based upon the findings of an August 2008 VA examination. 2. Improvement of the Veteran's left shoulder tendonitis is not shown. 3. The Veteran is not shown by competent medical evidence to have a disability manifested by kidney failure that is etiologically related to a disease, injury, or event in service, to include a service-connected disability. CONCLUSIONS OF LAW 1. The reduction of the Veteran's service-connected left shoulder tendonitis evaluation from 10 percent to noncompensable was not proper; the criteria for a restoration of the 10 percent rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5024 (2012). 2. Kidney failure was not incurred in or aggravated by service, and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. § 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As will be discussed below, the issue of the propriety of the reduction of the Veteran's left shoulder evaluation is being resolved in the Veteran's favor. As such, the Board finds that any error related to the VCAA regarding that claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The following VCAA discussion, therefore, applies only to the Veteran's claim for service connection for kidney failure. The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated April 2008 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; information and evidence that the Veteran was expected to provide; and notice regarding the degree of disability and effective date. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records and VA medical treatment records have been obtained, to the extent available. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. The Veteran was provided with a VA examination for his left shoulder tendonitis and kidney failure in August 2008. The examination report demonstrates that the examiner reviewed the Veteran's claims file, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that the August 2008 examination report is adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Legal Criteria and Analysis I. Reduction The U.S. Court of Appeals for Veterans Claims (Court), in Brown v. Brown, 5 Vet. App. 413 (1993), interpreted the provisions of 38 C.F.R. §§ 3.344 and 4.13 to require that in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, not only must it be determined that an improvement in a disability has actually occurred, but also an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.2 and 4.10; Brown, supra. With regard to rating reduction matters in particular, VA regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. A veteran will be notified of the proposed reduction and that he has 60 days to present evidence showing why the reduction should not be implemented and to request a hearing. The reduction will be made effective the last day of the month during which the 60-day period expires. 38 U.S.C.A. § 5112(b)(6) (West 2002); 38 C.F.R. § 3.105(e) (2012). The Board notes that the provisions of 38 C.F.R. § 3.344(a) and (b), which apply to evaluations in effect for five years or more, are not for application in this case. Rather, the provisions of 38 C.F.R. § 3.344(c) are applicable in this case, which provide that, with respect to a disability rating in effect for less than five years, re-examinations disclosing improvement will warrant a rating reduction. The Veteran's left shoulder tenosynovitis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5024 for tenosynovitis, which provides that tenosynovitis will be rated on limitation of motion of affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2012). Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5201, relating to limitation of motion of the arm, provides a minimum rating of 20 percent disabling where motion of the arm is limited to shoulder level (and a non-compensable rating for motion of the arm greater than shoulder level). Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. As an initial matter, as discussed above, because the 10 percent rating for the Veteran's left shoulder tendonitis was in effect from February 24, 2005, to April 1, 2009, a period of less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. See Brown, 5 Vet. App. at 417. By way of background, a September 2005 rating decision granted the Veteran's claim for service connection for left shoulder tendonitis, and assigned a 10 percent rating under Diagnostic Code 5024, effective February 24, 2005. 38 C.F.R. § 4.71a. In February 2008, the Veteran requested an increased rating for his left shoulder tendonitis. In August 2008 he was afforded a VA examination, which noted limitation of abduction to 90 degrees with no objective pain on motion. The Veteran did report daily pain of 7-8/10 and the need to see a chiropractor on a weekly basis. No joint ankylosis was noted. Based on the examination results, a September 2008 rating decision proposed to reduce the rating assigned to the Veteran's left shoulder from 10 percent to noncompensable, based upon range of motion testing showing no pain on reduced range of motion. The Veteran did not request a hearing, and a January 2009 rating decision reduced the evaluation of the Veteran's left shoulder disability from 10 percent to noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5024. VA outpatient treatment records of 2010 and 2011 show that the Veteran's range of motion continues to be reduced. Moreover, pain on motion is once again being noted. In August 2010, mild tenderness of the joint was noted. In December 2011, the Veteran complained of pain on motion, with the pain reaching a level which required injectable medication for treatment. The Board acknowledges that, at the August 2008 VA examination, there was no objective evidence of pain on motion. However, and notably, the Veteran did report subjective daily pain of 7-8/10 and the need to see a chiropractor on a weekly basis. Moreover, objective evidence of pain on motion was noted in VA treatment records of 2010 and 2011. Therefore, the Board is not convinced that an actual improvement has occurred. The lack of objective evidence of pain on motion in August 2008 does not equate to complete lack of pain at all times or a permanent improvement. The Veteran is competent to report pain; he has been consistent in so doing, and is therefore credible. Moreover, as noted above, not only must actual improvement be demonstrated, but also an improvement in his ability to function under the ordinary conditions of life. Brown, supra. The Veteran's credible reports regarding this condition's affects and the treatment records do not indicate improvement in his ability to function in this manner. Accordingly, the Board finds that the evidence is at least in equipoise; thus, restoration of the 10 percent evaluation for left shoulder tendonitis is warranted. Gilbert, supra. In reaching its determination in this case, the Board notes that the Veteran's correspondences since the issuance of the appealed January 2009 rating decision do not reflect an intent to seek a rating higher than 10 percent for this disability. The Board has therefore limited its analysis to the issue of the propriety of the reduction from 10 percent to zero percent. II. Service Connection 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). Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (wartime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran 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 between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including renal diseases, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran seeks entitlement to service connection for kidney failure. He argues that he has kidney failure which is due to his service connected hypertension or the medication described for hypertension. As noted, the Veteran has restricted his claim to a secondary service connection basis. Regardless, the Board finds that whether on a direct or secondary basis, the Veteran's claim must be denied on the same basis, the lack of a current disability. Any disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Whether on a direct or secondary basis, service connection cannot be established without first showing that the veteran has a current disability. In this regard, the Board notes that after a review of the competent medical evidence of record, the Board finds that there is no evidence of a current disability manifested by kidney failure. Private medical treatment records of July and August 2007 show that the Veteran was treated for an acute kidney injury due to acute tubular necrosis. He was treated and the condition resolved. The Veteran was afforded a VA examination in August 2008. At the time, he reported he was asymptomatic and had improved since the onset of the condition. The only symptom noted was frequency of urination. After a physical examination and a review of the claim folder with associated treatment records, the examiner provided a diagnosis of resolved acute renal failure. He opined that acute tubular necrosis was less likely as not permanently aggravated by hypertension. He stated that he had carefully reviewed the claim file and that the Veteran developed had developed acute renal failure in July 2007 due to severe dehydration. He has not been on HCTZ for many years, so he was not on any diuretics that could cause his dehydration. He has been on lisinopril, an ACE inhibitor as far back as 2004. It is unlikely that lisinopril caused his acute renal failure after being on it for several years. He further noted the Veteran was a yard worker and it would be easy to become dehydrated during the summer heat. This is more likely the reason why he became dehydrated, leading to poor perfusion to his kidneys causing acute renal failure. Upon review of the evidence, the Board finds that there is no current disability manifested by kidney failure. Indeed, while the record reflects that the Veteran had kidney failure in 2007, this predated the filing of the Veteran's claim and therefore does not demonstrate a disability at the time of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Moreover, the episode of kidney failure had resolved prior to the filing of the Veteran's claim, and there is no competent evidence of an episode of kidney failure at any time during the pendency of the claim. Indeed, at the August 2008 VA examination, the Veteran was diagnosed with resolved acute renal failure and therefore, no current disability. However, even if the Board accepts the 2007 episode of kidney failure as evidence of a diagnosis of a current disability of kidney failure, the evidence is against the Veteran's claim. The only competent medical opinion of record states that kidney failure is due to dehydration and not the service connected hypertension or medication for the same. The opinion was provided after a review of the claim file, review of the associated private and VA treatment records, and an examination of the Veteran. Furthermore, it stands uncontradicted by any other competent opinion of record. The Board also acknowledges the Veteran's contention that he currently has kidney failure as a result of his service connected hypertension. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions. While the Veteran is competent to report what comes to him through his senses, he does not have the medical expertise needed to render an opinion as to whether one disability affects the onset or severity of another disability. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). While he is certainly competent to report symptomatology, the Board ultimately finds the competent medical evidence of record to be more persuasive than the Veteran's lay contentions as to the presence of a current kidney disability. In summary, the Board has considered the record and the Veteran's assertions, and finds that the preponderance of the evidence is against the claim of entitlement to service connection. Consequently, the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Restoration of a 10 percent rating for left shoulder tendonitis is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for kidney failure is denied. REMAND The Veteran has not been afforded a VA cardiovascular diseases examination since August 2008, more than four years ago. Considering that the service-connected hypertension encompasses ventricular hypertrophy, there is a substantial possibility that the disability, referenced in multiple recent VA treatment records, may well have worsened during that lengthy period of time. The Board therefore finds that a further VA examination is warranted, with particular attention to the potential ventricular hypertrophy symptoms. To date, the Veteran has not been afforded a VA examination directly addressing the question of whether his claimed headaches are etiologically related to service. The Board must stress that the symptoms of headaches (e.g., pain, tension) are certainly capable of lay observation, and the Veteran's contention that headaches are related to service is sufficient to trigger the need for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (the threshold for determining whether there is an indication that the disability in question may be associated with the veteran's service or with another service-connected disability is low); see also Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Accordingly, this case is REMANDED for the following action: 1. The Veteran must be afforded a VA cardiovascular examination addressing the service-connected hypertension with ventricular hypertrophy. The examiner must review the claims file, including relevant Virtual VA records. Blood pressure readings must be provided, and the examination must address the workload (in METs) that results in dyspnea, fatigue, angina, dizziness, or syncope. All other symptoms must be described in detail, and the examiner must address whether the Veteran is taking any medications for ventricular hypertrophy, as opposed to hypertension itself. All symptoms must be described in a typewritten report, and a rationale must be provided for all opinions rendered. 2. The Veteran must also be afforded a VA neurological examination, with an examiner who has reviewed the claims file (including relevant Virtual VA records). The examiner must consider the claims file review and the subjective reports of the Veteran in reaching a determination of whether it is at least as likely as not (a 50 percent or greater probability) that current headaches are etiologically related to service. All opinions must be supported by a rationale in a typewritten report. 3. Then, the Veteran's claims must be readjudicated. Consideration must be given to whether a separate compensable rating is warranted for ventricular hypertrophy. If the determination of either claim remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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. 2012). ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs