Citation Nr: 1310076 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-17 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a kidney disorder, to include renal cysts, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION 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). The Veteran had active service from August 1969 to August 1971, including combat service in Vietnam from January 1970 to January 1971. Commendations and awards include a Vietnam Service Medal with 2 Bronze Stars, a Combat Infantryman Badge, and a Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions in December 2007 and August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The December 2007 rating decision denied service connection for chronic obstructive pulmonary disease (COPD) and bilateral renal cysts (claimed as kidney problems). The August 2010 rating decision pertained to the rating for the Veteran's service-connected posttraumatic stress disorder (PTSD). In November 2010 the Veteran (and his spouse) appeared at the Columbia RO and testified by videoconference before the undersigned Veterans Law Judge sitting in Washington, D.C. A transcript of that hearing is in the claims file. In January 2011 the Board remanded the claims for further development, including provision to the Veteran of VA examinations. These examinations were done in 2012. No further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). In a rating decision in October, 2012, the RO granted service connection for COPD; and increased the rating for the Veteran's service-connected PTSD to 100 percent, effective throughout the appeal period. The benefits sought having been granted, namely, service connection for COPD, and an increase to the highest possible rating (100 percent) for PTSD, these two issues are resolved and are no longer on appeal. FINDING OF FACT The Veteran's kidney trouble, including renal calculi and cystic renal disease, began decades after his active duty service, and it is not the result of Agent Orange exposure or any other incident of active duty service. CONCLUSION OF LAW A kidney disorder did not begin in service or in the year after service, and is not otherwise related to any incident of active duty service. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the claimant of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter dated in September 2007. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claim for service connection, including the information and evidence to be submitted by him and the information and evidence to be obtained by VA. He was also apprised of how disability evaluations and effective dates are assigned, and of the type of evidence that impacts those determinations. As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA and private medical records, as well as the Veteran's lay statements. The Veteran was also accorded a VA examination, during which the examiner reviewed the claims file, discussed the Veteran's history and symptoms with the Veteran, and conducted a physical examination; and the report of this examination is sufficiently detailed as to permit fair and equitable consideration of the merits of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In addition to the foregoing, in November 2010 the Veteran testified before the undersigned Veterans Law Judge regarding his claim. During that hearing the Veterans Law Judge fully explained the issue and asked the Veteran, who was ably assisted by a veterans' services representative, questions to ascertain the nature of any in-service events and symptoms. The Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claim for service connection. Additionally, neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). In short, the Veteran was 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 have caused injury to the Veteran; and does not prohibit consideration of this matter on the merits. See Pelegrini, 18 Vet. App. at 121; 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). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. Merits The Veteran seeks service connection for a kidney disorder, which he posits may be related to his exposure to Agent Orange during active duty service. His DD Form 214 confirms that he served in Vietnam from January 1970 to January 1971, so his exposure to Agent Orange is conceded. In August 1971 the Veteran separated from active duty service. There is no record of any complaints, diagnosis, or treatment for any kidney ailments in service treatment records. Private medical records dating from 2001 reflect the earliest evidence of kidney trouble. An ultrasound in March 2001 found bilateral renal cysts and a small right renal calculus, and in April 2001 the Veteran underwent surgery secondary to a stone in the right distal ureter. An ultrasound and CT scan in September, 2007, also found bilateral renal cysts. In September 2007 the Veteran filed a claim for service connection for kidney problems. In a private treatment record dated in October 2008 a physician noted that the Veteran had asked whether his (the Veteran's) renal cysts were related to Agent Orange. The physician stated that he had advised the Veteran that he was unaware of a connection between renal cysts and Agent Orange, and added that he had recommended that the Veteran discuss the matter with VA since VA deals with Agent Orange issues. In September 2010 the Veteran was accorded a VA Agent Orange examination, and in April 2011 he was accorded a VA general medical examination. There was no discussion of any kidney problems during either of these examinations, and no finding of a kidney disorder by either examiner. In August 2012 the Veteran was accorded a VA kidney examination. The examiner noted that the claims file was reviewed. She also noted that the Veteran had a history of urolithiasis and renal cysts. Physical examination found no renal impairment. Diagnosis was cystic kidney disease, which the examiner stated was less likely than not related to active duty service, including herbicide exposure, because the Veteran had no history of cysts in service, and because people with no exposure to herbicides get renal cysts. Principles of Service Connection 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 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for calculi of the kidney if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Additionally, if a veteran was exposed to Agent Orange in the Republic of Vietnam during the Vietnam era, certain diseases listed at 38 C.F.R. § 3.309(e) are presumed to have been incurred in service. The Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, if said evidence is consistent with the circumstances, conditions, or hardships of the veteran's service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there still must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Analysis DD-214 confirms that this combat veteran served in Vietnam from January 1970 to January 1971; however, the Veteran does not allege, and the evidence does not show, that his symptoms began during combat, so the provisions of 38 U.S.C.A. § 1154(b) are inapplicable. In fact, there is no allegation or evidence of a kidney disorder at any time during service, and no probative evidence which suggests that a current kidney disorder actually began during service, so service connection on a direct basis under 38 C.F.R. § 3.303(a) or (d) is not warranted. Additionally, the Veteran was not diagnosed in the year after service with kidney stones (renal calculi), so service connection for a chronic disease under the presumptive provisions of 38 C.F.R. §§ 3.307(a), 3.309(a) is not warranted. Moreover, although this Vietnam veteran's exposure to herbicides is conceded, neither calculi of the kidney nor cystic renal disease is among the disorders listed at 38 C.F.R. § 3.309(e), so service connection under the presumptive provisions of 38 C.F.R. § 3.309(e) is not warranted. To the extent that the Veteran suggests that his post-service kidney complaints may be related to his exposure to Agent Orange some 30 years earlier, the Veteran has not offered any medical evidence that kidney trouble is actually caused by exposure to Agent Orange. See Combee v. Brown, 34 F.3d 1039, 1042 (1994) (for a disease not presumed under the regulation to be caused by herbicide exposure may still seek to establish service connection by offering medical evidence that his disease was actually caused by military service, including herbicide exposure). Indeed, no competent evidence of record supports such a theory, and it is in fact inconsistent with the impression offered by a VA examiner, who specifically stated that the Veteran's kidney disorder was not incurred in-service or related to Agent Orange exposure because there was no evidence of kidney trouble during service, and because anyone can get renal cysts; not just people exposed to Agent Orange. The Board finds this evidence from a VA examiner, who examined the Veteran and discussed the Veteran's medical history, and who specifically ruled out herbicides exposure as the cause of the Veteran's kidney problems, to be highly probative evidence against the Veteran's claim. Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Moreover, an affliction involving an internal organ, such as the kidney, is not a simple medical condition capable of lay observation or diagnosis, so any inference, that is, opinion, as to causation cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on whether his kidney trouble is related to service, including Agent Orange exposure. The Board consequently finds that the Veteran's contention is not competent and is in turn of no probative value. Jandreau. Accordingly, the Board finds that the weight of the evidence is clearly against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a kidney disorder, currently diagnosed as cystic renal disease, is therefore not warranted and the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a kidney disorder, including cystic renal disease, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs