Citation Nr: 1306192 Decision Date: 02/22/13 Archive Date: 04/10/13 DOCKET NO. 10-43 202 DATE 22 FEB 2013 On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for kidney disease, to included as secondary to type 2 diabetes mellitus. 2. Entitlement to an initial disability rating higher than 10 percent for type 2 diabetes mellitus. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to September 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for type 2 diabetes mellitus, and assigned a 10 percent disability rating. The RO denied service connection for kidney disease. FINDINGS OF FACT 1. The Veteran's chronic kidney disease became manifest more than a year after service. 2. The Veteran's type 2 diabetes mellitus, which was diagnosed many years after service, did not cause the Veteran's chronic kidney disease and has not aggravated that kidney disease. 3. From August 12, 2009, the Veteran's diabetes has required a restricted diet but has not required insulin, oral medication, regulation of activities, hospitalizations, or more than monthly visits to a diabetic care provider. CONCLUSIONS OF LAW 1. The Veteran's chronic kidney disease was not incurred or aggravated in service, and may not be presumed, based on chronic disease or herbicide exposure, to be service-connected. 38 U.S.C.A. §§ 1110, 1112, 1116,1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). -2- 2. The Veteran's chronic kidney disease is not proximately due to or the result of, and has not been aggravated by, the Veteran's diabetes. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310 (2012). 3. From August 12, 2009, the Veteran's diabetes has not met the criteria for a disability rating higher than 10 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. 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). The notice requirements of the VCAA require VA to notify the 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the 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/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). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the -3- claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a September 2009 letter, issued prior to the November 2009 rating decision that the Veteran has appealed. That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. The claims file contains service medical records, post-service medical records, statements from the Veteran, and reports of VA medical examinations. VA examinations in September 2010 and June 2011 adequately addressed the question of the likely etiology of the Veteran's kidney disease and were adequate for purposes of rating the Veteran's diabetes. The Veteran has not identified any potentially relevant evidence that is not associated with the claims file. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he 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 nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Kidney Disease The Veteran contends that his chronic kidney disease resulted from his service-connected type 2 diabetes mellitus or resulted from his exposure during service to herbicides such as Agent Orange. -4- Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including cardiovascular-renal disease, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disability, will be service connected. 38 C.F.R. § 3.310(b). Under certain circumstances, service connection for specific diseases may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). If a veteran was exposed to Agent Orange or another herbicide agent, service connection for any of the conditions listed under 38 C.F.R. § 3.309(e) will be presumed if the condition becomes manifest to a degree of 10 percent disabling or more. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to May 7,1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in Vietnam in the late 1960s and early 1970s. He is presumed to have been exposed to an herbicide agent during that service. VA has presumed service connection for the Veteran's diabetes based on his herbicide exposure during service. Kidney disease, however, is not subject to a presumption of service connection based on herbicide exposure. It is not included in the conditions listed at 38 C.F.R. § 3.309(e) for which service connection may be presumed. Service connection thus may not be presumed for the Veteran's kidney disease based on his -5- herbicide exposure. The establishment of service connection for his kidney disease requires direct evidence that it developed as a result of herbicide exposure during service, direct evidence that it was incurred or aggravated in service, or evidence that it is secondary to a service-connected disability. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service medical records are silent for complaints or findings involving the kidneys. The Veteran has not reported, and the claims file does not contain records of, any medical treatment during the year following his separation from service. In May 1989, the Veteran was hospitalized with severe abdominal pain. Imaging showed a markedly enlarged gallbladder and stones. The Veteran's blood pressure was very high. The Veteran underwent surgical removal of his gallbladder, which was found to have become gangrenous. Testing revealed proteinuria. With medication, the proteinuria decreased and was not in the nephrotic range. Ultrasound showed a right kidney cyst, and a renal flow study showed a defect of the right upper pole consistent with a renal cyst. A physician indicated that the renal cyst could be related to the Veteran's hypertension. Treatment records from 1990 reflect the history of a right kidney tumor and of hypertension. -6- In March 1992, the Veteran filed a claim for VA compensation or pension. He reported having sustained a back injury during service. He indicated that presently had high blood pressure, a right kidney tumor, arthritis in the low back and both shoulders, and a liver disorder. In a July 1992 rating decision, the RO granted service connection for left forearm fractures and low back arthritis. The RO listed other disorders, including a renal pole cyst and hypertension, as not service connected. The RO denied entitlement to non-service-connected pension. In private treatment in August 1994, the Veteran was hospitalized for a hypertensive crisis. Testing showed proteinuria. A renal scan showed evidence of an upper pole cyst. There was no evidence of obstruction of the kidneys. In private treatment in July 1996, the Veteran reported a ten year history of hypertension. He denied any history of diabetes mellitus. In October 1998 and January 1999 he again denied a history of diabetes. In January 1999, the Veteran was hospitalized to address chest pain and shortness of breath. At that time, the treating physician indicated that the Veteran's kidneys were not palpable. Abdominal CT performed at a private facility in November 2001 showed a right kidney cyst seven centimeters in size. Records of private treatment in 2001 and 2002 for lumbar spine problems contain notations of the right kidney cyst. Private treatment records from 2005 and 2006 reflect that the Veteran was in treatment for chronic kidney disease, including acute and chronic renal failure. In December 2005, it was noted that he had a family history of kidney disease. In May 2006, it was also noted that he had fluid overload. Private treatment records from April 2008 reflect that the Veteran's current disorders included hypertension, diabetes, and kidney problems. In November 2008, a treating physician found that the Veteran's renal function was getting worse. In January 2009, test results were consistent with controlled diabetes. In March 2009, it was reported that the Veteran had chronic kidney disease. -7- In VA treatment in May 2009, the Veteran reported a history of diabetes mellitus, congestive heart failure, coronary artery disease, atrial fibrillation, hypertension, renal failure, prostate enlargement, left knee pain, and spinal disc disease. The Veteran indicated that he received dialysis three times a week. The Veteran submitted in 2009 a statement from private nephrologist S. A. Y., M.D. Dr. Y. indicated that he treated the Veteran for longstanding hypertension, diabetes mellitus, liver disease, chronic kidney disease, and fluid overload. Dr. Y. wrote, "His renal disease is multifactorial, not limited to DM, HTN, Non steroidal use and liver disease." Dr. Y. indicated that due to the Veteran's longstanding diseases his kidney function had deteriorated. In August 2009, the Veteran filed a claim for service connection for type 2 diabetes mellitus, and for kidney and renal disease related to diabetes. In an October 2009 statement, the Veteran wrote that he had been treated for hypertension for years. He indicated that he had experienced kidney failure and had been treated with dialysis. In a May 2010 statement, the Veteran asserted that his diabetes caused his renal disease. In the report of a September 2010 VA medical examination, the examining physician reported having reviewed the Veteran's claims file. The examiner noted that the Veteran had type 2 diabetes mellitus with onset in 2008, and that the Veteran had kidney failure treated with dialysis three times per week. The Veteran reported a 30 year history of hypertension. The examiner found that the Veteran had hypertension. The examiner stated that the Veteran's kidney failure was not a complication of his diabetes. The examiner expressed the opinion that the Veteran's kidney failure was due to his 30 year history of hypertension, and that the kidney failure was not a result of the diabetes. He noted that the Veteran started on dialysis in 2008, around the same time that diabetes was diagnosed. He stated that kidney failure took years to develop, and that dialysis was not even considered before kidney failure became chronic. -8- In an October 2010 statement, the Veteran asserted that his exposure during service to herbicides such as Agent Orange caused his post-service renal failure. He also asserted that his diabetes was connected to his renal failure. On VA examination in June 2011, the examining physician reported having reviewed the Veteran's claims file. The Veteran reported a history of hypertension since 1984. It was indicated that continuous medication was needed to control the hypertension. It was noted that diabetes was diagnosed in 2008, and that the Veteran had been on dialysis for kidney failure since 2008. The examiner expressed the opinion that the Veteran's kidney disease was not caused by or aggravated by his diabetes. The examiner noted that the Veteran had a long history of hypertension. There is no evidence that the Veteran had a kidney disorder during service. The preponderance of the evidence thus is against finding that his current kidney disease was incurred in service. There is no evidence that he had kidney dysfunction during the year following separation from service. Thus, there is not a basis to presume that chronic kidney disease is service connected. The Veteran asserts that herbicide exposure during service caused his post-service kidney disease. As kidney disease is not one of the diseases that VA presumes to be related to herbicide exposure, a connection to herbicide exposure would require direct evidence. The Veteran, like other persons without medical training, is competent to provide certain types of medical information, such as recollections of symptoms he has experienced. Medical training is necessary, however, to provide competent findings or opinion about medical causation. The Veteran's assertion is not competent medical opinion regarding medical causation. The record does not contain any medical finding or opinion regarding any relationship between the Veteran's herbicide exposure and his kidney disease. Therefore the preponderance of the evidence is against a connection between the Veteran's herbicide exposure and his kidney disease. The Veteran contends that his kidney disease is secondary to his service-connected diabetes. The 2009 statement from the Veteran's private nephrologist, Dr. Y., -9- indicated that the Veteran's kidney disease is multifactorial, with diabetes being one of several factors in the kidney disease. In that statement, Dr. Y. did not indicate that the Veteran's diabetes to any significant extent caused the Veteran's kidney disease. Dr. Y.'s statement does not address the sequence in which the diabetes, kidney disease, and other diseases arose. The VA physicians who reviewed the file and examined the Veteran in 2010 and 2011 concluded that his kidney disease was not caused by and has not been aggravated by his diabetes. They explained their opinions, noting the sequence of development of the diseases. The Board finds that the VA examiners' opinions are consistent with the medical records and are reasonably well explained, and thus are fairly persuasive. As Dr. Y. did not clearly assert that diabetes caused kidney disease, and did not address the evidence that the diabetes did not significantly precede the kidney disease, the Board finds that, on the question of whether the diabetes caused the kidney disease, the VA examiners' opinions are more persuasive than Dr. Y.'s statement. Thus, the preponderance of the evidence is against finding that the Veteran's kidney disease is proximately due to or the result of, or has been aggravated by, his diabetes. Rating for Diabetes The Veteran appealed the initial 10 percent disability rating that the RO assigned for his service-connected type 2 diabetes mellitus. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. -10- In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran appealed the initial disability rating that the RO assigned, and continued his appeal after the RO assigned a higher rating for a later period. The Board will consider the evidence for the entire period since August 12, 2009, the effective date of the grant of service connection, and will consider whether staged ratings are warranted. The rating schedule provides the following criteria for rating diabetes: Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated 100 percent Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated 60 percent Requiring insulin, restricted diet, and regulation of activities 40 percent -11- Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20 percent Manageable by restricted diet only 10 percent Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. Private treatment records from April 2008 reflect that the disorders the Veteran had included hypertension, diabetes, and kidney problems. In January 2009, test results were consistent with controlled diabetes. The report of the September 2010 VA examination reflects that the Veteran was not on any medication for diabetes. It was noted that he was instructed to follow a restricted or special diet because of his diabetes. He had not had episodes of hypoglycemic reactions or ketoacidosis. On VA examination in June 2011, it was recorded that current treatment of the Veteran's diabetes was through diet alone. It was noted that the course of the Veteran's diabetes since diagnosis had been stable. There is no evidence that from August 12, 2009, the Veteran's diabetes has required insulin, oral medication, regulation of activities, or any management in addition to following a restricted diet. There is no evidence that his diabetes has required any hospitalizations or has required treatment visits two times a month or more frequently. The preponderance of the evidence is against a rating for his diabetes higher than the existing 10 percent rating. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the -12- VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's diabetes has not required frequent hospitalizations, and has not been reported to markedly interfere with his capacity for employment. The manifestations of the Veteran's diabetes are contemplated by the rating criteria in the rating schedule. It is not necessary to refer the rating of his diabetes for consideration of an extraschedular rating. ORDER Entitlement to service connection for kidney disease is denied. From August 12, 2009, entitlement to a disability rating higher than 10 percent for type 2 diabetes mellitus is denied. MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals -13-