Citation Nr: 1303540 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 11-29 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a genitourinary disorder, claimed as a prostate, kidney and bladder disorder and diagnosed as end-stage kidney failure, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1958. This matter is on appeal from a March 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction over the appeal is currently with the RO in Fargo, North Dakota. The Veteran was afforded the opportunity to testify before a Veteran's Law Judge in June 2012. However, that same month, he stated via telephone that he would be unable to attend, and requested that his appeal be forwarded to the Board for consideration. 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. The evidence does not establish that the Veteran has a disorder that may be presumptively related to ionizing radiation exposure, nor does the evidence establish that he has a radiogenic disease. 2. The Veteran's genitourinary disorder was not shown in service or for many years thereafter, and is not related to service. CONCLUSION OF LAW The Veteran's genitourinary disorder, claimed as a prostate, kidney and bladder disorder and diagnosed as end-stage kidney failure, was not incurred in or aggravated by active duty, and is not the result of exposure to ionizing radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (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). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2011 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. The Board acknowledges that the Veteran was not provided notice on how to establish service connection based on ionizing radiation exposure. However, as the evidence does not establish that he has a disorder that may be service-connected due to such exposure, the question of whether he was actually exposed to ionizing radiation is not reached. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records, and has also obtained all relevant private treatment records. Notably, the Veteran has not asserted that there are any relevant treatment records that have not been obtained. The Board acknowledges that a VA medical opinion was not obtained to determine the nature and etiology of his genitourinary disorder. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In deciding whether to remand the issue for a medical nexus opinion, the Board notes that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran, in which case an examination may not be required). In this case, there is no evidence of a chronic genitourinary disorder in service, and an opinion would be of limited probative value because of this. Although the Veteran stated that he was treated for a genitourinary infection in service, the Board has found his statements not credible in this regard. Therefore, the Board finds that a remand for a VA opinion would not be beneficial in the adjudication of this issue to the extent that it was denied, and is thus not required in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran is asserting that he has a genitourinary disorder, which has been routinely diagnosed as end-stage kidney failure, that is are related to his participation in Operation PLUMBBOB, a series of atmospheric atomic detonations which occurred at the Nevada Test Site from May 28 to October 7, 1957. Establishing service connection for a disorder on the basis of exposure to ionizing radiation during service can be shown in two different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, a radiation-exposed veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer. Under this section, a "radiation-exposed veteran" is one who participated in a radiation-risk activity which, by definition, means the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at other certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) are not met, service connection may also be established if the evidence shows the existence of any other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). The Veteran's personnel records indicate that he was stationed with the 1st Marine Division from December 1956 until he left active duty in August 1958. While his record of service does reflect that he was on temporary assigned duty from May 23, to July 8, 1957, which was during the timeframe of Operation PLUMBBOB. Although there is no mention here (or anywhere else in his service record) that he was actually involved in Operation PLUMBBOB, he has also submitted a letter he sent to his mother in July 1957, where he described viewing an atmospheric atomic detonation on July 5, 1957. This would appear to corroborate his assertions that he was present at the Nevada Test Site during Operation PLUMBBOB. But see Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (VA is not obligated to accept as fact statements made regarding non-medical activities, such as where the Veteran was stationed at any given time). However, the Board need not determine whether or not the Veteran was exposed to ionizing radiation while in service, because he has not claimed to have a disorder for which service connection may be granted on the basis of ionizing radiation exposure. First, the diseases that may be presumed related to radiation risk activities (such as participation in an exercise like Operation PLUMBBOB) are limited to various types of cancers. Here, the Veteran has not asserted that he has any form of cancer, nor does the evidence of record indicate that he has ever been diagnosed with cancer. Therefore, regardless of whether the Veteran participated in a "radiation risk activity," service connection would not be warranted on this basis without a diagnosis of some form of cancer. Moreover, the Veteran has not established that he has a radiogenic disease. Although the radiogenic diseases specifically listed in 38 C.F.R. § 3.311(b)(2)(i) is more expansive than the list contained in 38 C.F.R. § 3.309(d), this list is still limited to only various types of cancers. Thus, while the Veteran has been diagnosed with kidney failure, there is no evidence that his genitourinary condition is cancerous. Therefore, it is not considered "radiogenic" for purposes of this section. It is true that 38 C.F.R. § 3.311(b)(4) allows that any claimed disorder may be considered under this section if there is competent scientific or medical evidence to support that it is a radiogenic disease. However, in this case, the Veteran has not submitted any competent evidence that any disorder he has is a radiogenic disease or in any way related to ionizing radiation exposure. Moreover, none of his treating physicians has speculated that his genitourinary disorder is related to ionizing radiation exposure. Therefore, service connection is not warranted on this basis. Next, even though the Veteran's primary assertion has been that his genitourinary disorder is related to ionizing radiation exposure, he is not precluded from establishing service connection with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted for these disorders on this basis. As an initial matter, the service treatment records do not indicate treatment for a prostate, bladder or kidney disorder in service. There are no complaints of such disorders at any point and, significantly, his separation physical examination in July 1958 did not mention a history of such disorders, nor were they observed upon examination. Therefore, no chronic genitourinary or kidney disorder was noted in service. Next, the post-service medical evidence does not indicate the presence of a genitourinary disorder for many years. Specifically, the first indication of any such disorder in the medical record was not until October 2003, where he was evaluated for kidney disease. Upon examination he denied problems with urgency, hesitancy and prostate symptoms, and the concluding diagnosis was chronic renal failure that was secondary to his long-standing diabetes mellitus. However, this evaluation is approximately 45 years after the Veteran left active duty service. Therefore, a continuity of symptoms is not established based on his treatment history. The Board has also considered the Veteran's assertions that he was treated for a genitourinary infection while in active duty and that it has continued since that time. In this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose genitourinary or kidney disorders, as they are not disorders that may be diagnosed by unique and readily identifiable features, and thus requires a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that any statements asserting a continuity of symptoms since active service, while competent, are nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board recognizes that the lack of treatment records related to a genitourinary infection does not necessarily mean it did not happen. However, it is significant that this disorder was not mentioned by history in any other treatment note, including his separation physical examination in July 1958. Moreover, there is no basis to support the assertion that it continued since that time. First, the Board cannot ignore the fact that the Veteran failed to file a claim for this decades after he left active duty. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Moreover, the Veteran's separation physical examination did not indicate any such symptomatology. Also, the fact that the physician in October 2003 stated that this disorder was secondary to diabetes mellitus rebuts any assertion that his genitourinary disorder has been persistent since active duty. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty, despite his contentions to the contrary. Specifically, none of the clinical evidence suggests a relationship between active duty and his current complaints, and no physician has suggested such a relationship. To the contrary, recent evaluating physicians relate it to his diabetes mellitus rather to his active duty service. The Board has also considered the statements made by the Veteran relating his genitourinary disorder to ionizing radiation exposure and to his active service in general. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his genitourinary disorder. See Jandreau, 492 F.3d at 1377, n.4. Because genitourinary disorders such as to the prostate, bladder and kidney are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's genitourinary disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a genitourinary disorder, claimed as a prostate, kidney and bladder disorder and diagnosed as end-stage kidney failure, to include as due to ionizing radiation exposure, is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs