Citation Nr: 1301459 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 06-25 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a chronic kidney stone disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded the Veteran's claim for additional development in March 2012. FINDING OF FACT The Veteran does not have a chronic kidney stone disability which is attributable to active service. CONCLUSION OF LAW The Veteran's chronic kidney stone disability is not the result of disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in September 2004 and March 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including calculi of the kidney, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In the alternative, where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition, service connection can be granted for that chronic disability. The evidence must be medical unless it relates to a condition where lay observation is competent. 38 C.F.R. § 3.303(b) (2012). If chronicity is not applicable, service connection may still be established if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that his kidney stone disability is related to service. Specifically, he indicated at an April 2012 VA examination that he believes his kidney stone disability is related to service because he never had kidney stones prior to service to service, so service must have caused the condition. The Veteran's service medical records indicate that a clinical evaluation of the Veteran's genitourinary system was normal at the Veteran's entrance examination dated in October 1968. On a report of medical history form submitted in conjunction with the entrance examination, the Veteran checked a box and indicated that he had "kidney stone or blood in urine." A physician's summary noted that the Veteran had "infected kidneys two to three years ago; one time only; all well." There is no evidence of treatment for kidney stones in service and the Veteran's September 1970 separation examination included a normal clinical evaluation of the Veteran's genitourinary system with the exception of an unrelated left varicocele. A March 1998 consultation from E. Kuhn, M.D., a urologist indicates that the Veteran had passed two stones previously. The Veteran was noted to have a left distal ureteral calculus at that time. In May 1998, the Veteran was noted to have passed a stone and had a total three episodes of urolithiasis. VA outpatient treatment reports dated from November 1970 to August 2012 show a diagnosis of nephrolithiasis as early as July 2007. Nephrolithiasis was noted as part of the Veteran's past medical history on reports dated through August 2012. At an April 2012 VA examination, the Veteran was noted to have been diagnosed with nephrolithiasis in the 1970s. The examiner thoroughly reviewed the claims file and referenced relevant medical records and the Veteran's reported medical history in formulating his opinion. The Veteran reported that he had kidney stones three times the first time being in the 1970s. He indicated that they recurred every ten years and the last episode occurred four years prior. The Veteran stated that he first developed kidney stones after he got out of the military and did not have them prior to enlistment. The examiner opined that it was less likely than not that the Veteran's nephrolithiasis/kidney stones were caused by, as a result of, or aggravated by the Veteran's active duty service. The examiner noted that the Veteran did not have nephrolithiasis/kidney stones prior to enlistment but had a kidney infection which was unrelated to nephrolithiasis/kidney stones. The examiner reiterated the Veteran's reported history of three episodes of nephrolithiasis/kidney stones with the first occurring after discharge and not within one year of discharge. Upon questioning by the examiner, the Veteran indicated that he believed his kidney stone disability was related to service because he never had kidney stones prior to service to service, so service must have caused the condition. The examiner's rationale for there medical opinion was that that there was no medical reason to link the Veteran's condition of nephrolithiasis/kidney stones to military service. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a chronic kidney stone disability. As an initial matter, the Board notes that the Veteran was presumed sound at his entrance to service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.303(c) (2012). The Veteran's service medical records note only a history of a kidney infection rather than kidney stones. Moreover a clinical evaluation of genitourinary system was normal at his entrance to service and the April 2012 VA examiner indicated that a kidney infection was unrelated to kidney stones. The Board acknowledges that the Veteran is competent to report that he experienced kidney stones after service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion that his kidney stones are related to his active duty service is insufficient to provide the requisite etiology of the kidney stone disability because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Routen v. Brown, 10 Vet. App. 183 (1997) (layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his kidney stone disability being related to his active service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The only medical opinion of record, that of the April 2012 VA examiner, found that it was less likely than not that the Veteran's nephrolithiasis/kidney stones were caused by, as a result of, or aggravated by the Veteran's active duty service. That opinion is more probative as to the etiology of the Veteran's chronic kidney stone disability as the examiner reviewed the entire claims file and provided a rationale to support the opinion based on that examiner's medical training and expertise. Additionally, the Veteran has not submitted any competent evidence which provides a basis for the conclusion that kidney stones manifested within one year of his separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that a chronic kidney stone disability is etiologically linked to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a chronic kidney stone disability and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a chronic kidney stone disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs