Citation Nr: 1300860 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-42 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for kidney stones, claimed as kidney disease secondary to dehydration and bacterial ingestion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from November 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In April 2011, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. Additional evidence in the form of an August 2012 statement from the Veteran's daughter was associated with the claims file subsequent to the AOJ's most recent adjudication of the claim in March 2012. Because the evidence is cumulative and duplicative of arguments and contentions already of record, a remand to the AOJ for a supplemental statement of the case is not required. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2012). FINDING OF FACT The Veteran does not have kidney stones that had their clinical onset during, or are related to, his active military service. CONCLUSION OF LAW The Veteran does not have kidney stones that are the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the claim. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that VA's duty to notify was satisfied by letters sent to the Veteran in November 2007 and January 2009 with regard to the service connection claim on appeal as the letters addressed all of the notice elements. The November 2007 letter was sent prior to the initial unfavorable decision by the AOJ in January 2008, and the January 2009 letter was sent prior to the decision by the AOJ that confirmed the denial in February 2009. Consequently, a remand of the service connection issue for further notification of how to substantiate the claim is not necessary. The duty to assist was also met in this case. The available service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file, including records from the Social Security Administration (SSA). The Veteran has indicated that he was hospitalized at the base hospital in Camp Pendleton, California. Pursuant to the Board's April 2011 remand, the Appeals Management Center (AMC) contacted the hospital at Camp Pendleton and requested records pertaining to the Veteran. In August 2011, the AMC was informed by personnel at Camp Pendleton that there are no such records at the facility. Because this military facility informed VA that the records do not exist, a remand for another records request is not necessary as such a request would be futile. See 38 C.F.R. § 3.159(c)(2). By a September 2011 letter, the AMC properly informed the Veteran of the unavailability of records from Camp Pendleton. See 38 C.F.R. § 3.159(e). Additionally, a VA examination with respect to the issue on appeal was obtained in May 2011 pursuant to the Board's April 2011 remand. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board specifically finds that the VA opinion obtained from the examiner in this case is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the Veteran, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed and medical literature. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 a 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). In addition, certain chronic diseases, such as calculi of the kidney (kidney stones), may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that he has kidney disease, manifested by kidney stones, as a result of his active military service. He was afforded a hearing before the Board in October 2010 whereby he testified that he began to experience kidney problems between 2003 and 2005. The Veteran stated that he was treated for dehydration during service when he was stationed in Panama and California. He indicated that he only experienced dehydration in service. The Veteran also recalled that he consumed water that contained bacteria during service in Panama. He maintains that any currently diagnosed kidney stones are related to these in-service incidents. Thus, the Veteran contends that service connection is warranted for kidney stones. A review of the Veteran's service treatment records does not reveal a diagnosis of kidney stones or treatment for kidney problems. This is not surprising given that the Veteran has indicated that his kidney problems began between 2003 and 2005. A March 1982 entry does document treatment in Panama for complaints of general malaise, headache, sore throat, and some abdominal pain. In addition to flu syndrome, an assessment of mild heat exhaustion was made. This is supporting evidence of the Veteran's recollection that he was treated for what he termed dehydration. Notably, a July 1982 entry shows that the Veteran was involved in a motor vehicle accident resulting in blunt trauma to the left flank. In light of this information, the Board finds that the evidence tends to establish the existence of the claimed in-service incident of experiencing dehydration. Additionally, an in-service injury to the left flank is established-an injury to which the Veteran's current kidney problems could possibly be related. While the service records do not reference the consumption of water that contained bacteria, as noted in the April 2011 remand, the Veteran is competent to attest to factual matters of which he has firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Given his seemingly credible testimony, the evidence also establishes that the Veteran likely consumed water that he believed was contaminated with bacteria. Post-service treatment records show a diagnosis of and treatment for nephrolithiasis or kidney stones. The earliest medical evidence of kidney stones is a May 2005 surgery report. It was noted that the Veteran had a left kidney stone and a history of right kidney stones. He began treatment for kidney stones through the VA system in June 2005. Subsequently dated VA records, private records from a Dr. Perry and Clark Regional Medical Center, and physical evaluations from SSA show regular treatment for kidney stones, particularly on the left side. Left flank pain is also shown. An October 2010 letter from Dr. Perry indicates that the Veteran continues to be followed for chronic kidney stones. In view of this evidence, the current disability element of the claim is established. The salient question is whether the Veteran's current kidney stones are attributable to his active military service. In April 2011, the Board remanded the claim for a VA examination and to obtain an opinion that would address the nature and origin of the Veteran's kidney stones. Although the post-service medical records reflect regular treatment for kidney stones, none of the medical professionals provided an opinion as to the cause or origin of the kidney stones. A VA physician conducted an examination in May 2011. The examiner reviewed the claims file and noted an accurate history, including the in-service dehydration, possible bacteria consumption, and the left flank trauma from a motor vehicle accident. After a physical examination and testing, the VA examiner provided a diagnosis of nephrolithiasis with the Veteran having frequent kidney stones. As to the possible relationship between the Veteran's kidney stones and his military service, the VA examiner gave the opinion that it is less likely as not (less than 50/50 probability) that the kidney stones are caused by or a result of an injury or disease during active service. As to the Veteran's primary theory of entitlement regarding dehydration, the examiner explained that acute dehydration can cause an increased concentration of solutes in the urine, which in turn can form stones, but it is not a cause of persistent stone formation unless the mechanism causing the dehydration is also persistent. The examiner cited to medical literature in this regard. The VA examiner also noted that the Veteran had been told that his left kidney was abnormal and this could have been caused by trauma. The examiner indicted that the in-service motor vehicle accident with left flank trauma could well have caused an injury to the left kidney. However, the examiner noted that recent imaging is in fact negative for a deformity. The examiner pointed to recent evidence of a medullary sponge kidney on the left side, which would account for the predominance of left sided kidney stones in the Veteran, but that a medullary sponge kidney is not a traumatic disorder. The examiner also cited to medical literature in this regard. The examiner concluded that the possibility of the Veteran's left kidney stones being related to a prior left renal injury is intriguing, but it is not supported by a general review of the medical literature. In summary, the VA examiner stated that neither an acute injury nor non-persistent dehydration appear related to subsequent recurrent kidney stone formation. In the absence of support for the contention of causality found in the review of the medical literature, the examiner reiterated that the Veteran's kidney disorder is less likely as not caused by or the result of an injury or disease during active service. In consideration of the evidence of record, and primarily based on the VA examiner's May 2011 report, the Board finds that the Veteran does not have kidney stones that had their clinical onset during, or are related to, his active military service. The examiner's opinion is persuasive as it finds support in the record and medical research. The examiner explained that, while there is some medical possibility of causation related to dehydration and trauma, this was not the case given the Veteran's particular circumstances. Specifically, these theories of causation are not applicable because the Veteran did not have persistent dehydration and he does not have a trauma-related deformity of the left kidney. The Board has considered the Veteran's contentions on the matter. However, there is no indication that he possesses the requisite expertise to provide a probative opinion on the complex medical questions raised in this case pertaining to the nature and origin of his kidney stones. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The VA examiner considered the theories and they were not endorsed. The May 2011 reports constitutes the most probative and persuasive evidence for deciding the claim and the Veteran has not provided any written medical opinion evidence that is in contrast to the VA examiner's opinion. The Veteran has indicated, particularly at his October 2010 Board hearing, that his VA and private treating physicians informed him that his kidney problems could be related to military service. He is competent to report what he has been told by medical professionals. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a lay person is competent to report a contemporaneous diagnosis). However, the Board accords the secondhand recollections little evidentiary weight compared to the comprehensive and detailed opinion report of the May 2011 VA examiner, particularly given that no such opinion is present in the actual records from said treating physicians. In view of the Board's finding, the Board therefore concludes that service connection is not warranted for kidney stones on a direct basis. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally, the Board notes that there is no objective evidence that calculi of the kidney (kidney stones) manifested to a compensable degree within one year of the Veteran's separation from military service. As detailed previously, the earliest medical evidence of kidney stones is in May 2005, which is over 20 years after service. While the evidence reflects a history of kidney stones, the evidence does not suggest that the Veteran had kidney stones to a compensable degree as early as November 1983-one year after separation from service. Thus, service connection is not warranted for calculi of the kidney on a presumptive basis pertaining to chronic diseases. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the foregoing reasons, the Board finds that the claim of service connection for kidney stones must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for kidney stones is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs