Citation Nr: 1301868 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-15 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for an intestinal disorder, to include diverticulosis. 2. Entitlement to service connection for a kidney disorder, to include cyst in the kidney, hematuria and kidney stones. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for an intestinal disorder and for a kidney disorder. This case was previously before the Board in March 2010 and March 2012, and was remanded on each occasion for additional development of the record. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. In its March 2012 determination, the Board granted service connection for hemorrhoids. In addition, by rating action dated August 2012, the RO granted service connection for peptic ulcer disease. This decision, accordingly, is limited to the issues set forth on the preceding page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has an intestinal disorder, to include diverticulosis, that is related to service. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a kidney disorder, to include a cyst in the kidney or hematuria, that is related to service, or that preexisting kidney stones chronically increased in severity during service. CONCLUSIONS OF LAW 1. An intestinal disorder, to include diverticulosis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303(b) (2012). 2. A kidney disorder, to include a cyst in the kidney, hematuria and kidney stones, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303(b), 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letter dated April 2008, issued prior to the rating decisions on appeal, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, the reports of a VA examination, and the testimony of the Veteran at a hearing before the undersigned. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA examination was conducted, and opinions regarding the etiology of the Veteran's intestinal and kidney disabilities have been obtained. The VA opinions were rendered by a medical professional who clinically evaluated the Veteran, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinions are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). It was reported on the enlistment examination in August 1953 that the Veteran had a right renal calculus in 1953. It had been treated transvescially. X-rays were negative. Later that month, it was noted the Veteran had a questionable left upper quadrant opacity on flat plate. A history of urinary stones and recent hematuria was noted. An intravenous pyelogram in September 1953 was normal. The Veteran was brought to a field hospital in February 1954. It was reported that while climbing a hill, he developed sudden pain in his abdomen and collapsed. The pain radiated from the right flank down into the right lower quadrant. He related a history of urgency and pain on passing urine during the previous 48 hours. He also stated he had renal colic and that he had had a stone removed from the left ureter by cystoscopy one year earlier. The Veteran added he had experienced kidney trouble all his life. He was referred to another hospital for treatment. A genitourinary work-up, including an intravenous pyelogram and urine, was well within normal limits. It was noted his back pain persisted and that orthopedic and neurosurgical consultations failed to produce any organic evidence of disease responsible for the Veteran's back pain. The diagnosis was changed from ureter calculus to back pain, etiology unknown. The service treatment records disclose that the Veteran was hospitalized in March 1954 and complained of severe left flank pain of four hours duration. It was indicated that the previous month, he had passed blood with urine and then passed five stones spontaneously. Several stones were removed by cystoscopy. He again passed blood at the beginning of his urinary stream. He also described slight burning. It was asserted that prior to last year, he had no known kidney or kidney-related infections. Surgery revealed mesenteric adenitis. In April 1954, the Veteran had the sudden onset of abdominal, right-sided pain while on liberty. The admission diagnosis was ureteral calculus, right, although x-rays were negative. A repeat intravenous pyelogram in May 1954 was negative. He was seen for a three day history of bilateral costovertebral angle pain radiating to the groin in July 1954. It was indicated he had passed his first renal stone in 1953, and had never had any medical problems previously. While hospitalized, the Veteran had neuropsychiatric and orthopedic consultations. The diagnosis was lumbosacral strain. The Veteran was again hospitalized in December 1954 with chills, fever and subcostal pain. A gastrointestinal series was normal, and he continued to have vague complaints and morning nausea. He was seen in January 1955 for vomiting and right lower quadrant pain. It was reported later that month that the examiner did not feel the Veteran had organic pathology. The diagnosis was psychogenic gastrointestinal reaction. The Veteran was again admitted to a hospital in July 1955 with a three week history of nausea, abdominal pain and vomiting. A physical examination was essentially within normal limits. Laboratory work-up included a gastric analysis and upper gastrointestinal series which were negative. The diagnosis was changed to surgical observation (peptic ulcer). The abdomen and viscera, and the genitourinary system were normal on the separation examination in July 1956. VA outpatient treatment records disclose the Veteran was seen in May 2008. A history of kidney stones decades ago was noted. It was also reported he had undergone a partial gastrectomy for peptic ulcer disease. It was noted in June 2008 that an intravenous pyelogram and urine cytologies were negative. The Veteran related a history of uncomplicated heartburn for 50 years in August 2008. An esophagogastroduodenoscopy revealed no evidence of Barrett's esophagitis and status post Billroth I anastomosis with bile gastritis in the remnant pouch. He was seen in the genitourinary clinic the next month for microscopic hematuria. A history of kidney stones with spontaneous passage in 1954 was noted. In March 2009, the assessment was microhematuria. It was indicated that a recent work-up was negative. The Veteran was afforded a VA examination of the rectum and anus in November 2010. The examiner reviewed the claims folder and diagnosed remote history of kidney stones. She observed the Veteran stated he had two more episodes of kidney stones in the early 1980's and mid 1990's, but there was no documentation for review other than the episode on active duty. On VA examination of the intestines in November 2010, the examiner noted she reviewed the claims folder. It was stated the Veteran had experienced lifelong abdominal complaints. Following an examination, the diagnoses were diverticulosis, peptic ulcer disease, history of appendectomy, history of colectomy and history of Billroth I gastrectomy. The examiner opined that it was less likely as not that the current kidney disorder, to include kidney stones/residuals, is less likely as not caused by or a result of kidney stones on active duty. She also concluded that it was less likely as not that a gastrointestinal disorder, including peptic ulcer disease and diverticulosis, was caused by or a result of an appendectomy or colectomy in service. The rationales for these opinions were that there was no treatment since service for kidney stones or any documented residual. She added that the only current sign of genitourinary tract dysfunction was microscopic hematuria, without any signs or symptoms or diagnostic evidence of kidney stones. Finally, the examiner stated that peptic ulcer disease and diverticulosis are not related to the in-service appendectomy/colectomy. Pursuant to the Board's remand, in March 2012, the examiner who conducted the November 2010 examinations provided a clarifying opinion regarding the etiology of the Veteran's disabilities. She concluded that diverticulosis was less likely as not incurred in or caused by an in-service event. She noted the Veteran was never diagnosed or treated for diverticulosis in service, although he was seen for right lower quadrant pain. She observed the Veteran was not diagnosed with diverticulosis until August 2009, and that the location of the symptoms and the diverticuli seen on the CT scan of July 2011 involved the left lower quadrant/sigmoid and descending colon. The examiner concluded these are unrelated to any intestinal condition the Veteran had on active duty. With respect to the cyst in the upper pole of the kidney, the VA examiner concluded it was less likely as not incurred in or caused by an in-service injury or event. She explained that the renal cysts found on a CT of the abdomen in August 2009 were an incidental finding, and that there is no established connection in medical literature between the development of cysts and the formation of kidney stones. She noted that simple renal cysts are observed frequently in normal kidneys, and are the most common renal masses. She added that there was no condition on active duty that could be considered a contributing factor to the formation of renal cysts. Finally, the examiner commented that microscopic hematuria is less likely as not incurred in or caused by kidney stones. She pointed out that the Veteran had had kidney stones prior to service, and a single episode while in service. She noted there was no evidence in the medical records of a recurrence over the ensuing 57 years. She further noted that a cause for hematuria is often not identified. Although active renal stones is an etiological consideration for microscopic hematuria, the Veteran had an entirely negative urinary tract evaluation, and no recorded treatment for renal stones since his discharge from service. All four urine samples between the diagnosis of hematuria in June 2008 and November 2010 are negative for cysts/crystals as a marker for renal stones, and there is no interval history of stone formation. The examiner concluded there was no condition while on active duty that could be considered a contributing factor to the development of microscopic hematuria. The Veteran asserts service connection is warranted for an intestinal disorder other than peptic ulcer disease, and for a kidney disorder. The Board acknowledges he was seen on various occasions during service for abdominal complaints. It is significant to point out, however, that there was no indication on the separation examination in July 1956 of any gastrointestinal or genitourinary abnormality. In addition, the VA examiner specifically concluded that diverticulosis was not related to service. She also determined that the Veteran's kidney disorder was not related to service. The Board emphasizes that the VA examiner provided a detailed rationale for her opinions. The Board acknowledges the Veteran's assertions that an intestinal disorder, to include diverticulosis, and a kidney disorder, to include a cyst, hematuria and kidney stones, are related to service. However, as a lay person, he is not competent to diagnose a disability or render an opinion as to the cause or etiology of such disorder as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to testify as to the fact he had intestinal and kidney problems in service, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinion on causation competent. The Board notes the entrance examination demonstrates the Veteran had been treated for a right renal calculus prior to service. Thus, the presumption of soundness at entrance does not attach in this case. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Since there is no presumption of soundness in this case, the issue in this case is whether the Veteran's preexisting kidney disability chronically increased in severity during service. In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent chronic increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). There is nothing in the clinical record to suggest the Veteran's preexisting kidney disorder increased in severity during service. The Board acknowledges the Veteran was treated during service on a few occasions in service for complaints relating to kidney stones. It is also noted he was seen for hematuria in July 1954. In light of the fact there was no indication on the separation examination of any problems involving the genitourinary system, there is no basis for a conclusion a preexisting kidney condition increased in severity during service. This conclusion is affirmed by the fact that the record is devoid of complaints pertaining to the kidneys for more than five decades following the Veteran's separation from service. As noted above, the only medical opinion of record concluded that the Veteran's kidney disorder, to include hematuria, and kidney stones, are not related to service. While the Board concedes the VA examiner did not specifically address the question of aggravation, it is significant to point out that she noted there had not been any treatment for stones after service. She added that there were no findings in service that would have contributed to the hematuria noted more than 50 years after the Veteran's discharge from service. Evidence of a prolonged period without medical complaint is for consideration. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000). While the fact that any intestinal or kidney disorder was initially documented many years after service is not dispositive, it is crucial evidence and, combined with the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). In light of the absence of any intestinal or kidney complaints for so many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the etiology of an intestinal disorder, include diverticulosis, or a kidney disorder, including a cyst in the kidney, hematuria and kidney stones. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for an intestinal disorder or a kidney disorder. Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for an intestinal disorder, to include diverticulosis, is denied. Service connection for a kidney disorder, to include a cyst in the kidney, hematuria and kidney stones, is denied. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs