Citation Nr: 1310174 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-22 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for renal insufficiency and proteinuria. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to February 1992. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the Veteran failed to appear for a hearing before the Board. In November 2010, the Board reopened the claim for service connection for renal insufficiency and proteinuria and remanded the case. As the requested development had already been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Renal insufficiency and proteinuria clearly and unmistakably existed prior to the service and was not aggravated as a result of service or is it caused by or made worse by a service-connected disability. CONCLUSION OF LAW Pre-existing renal insufficiency and proteinuria was not aggravated during service and it is not caused by or aggravated a service-connected disability. 38 U.S.C.A. §§ 1110, 1111, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, .306, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the Veteran's claim for service connection for renal insufficiency and proteinuria was reopened and remanded for further development, VCAA compliance as to the duty to notify need not be addressed further. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded a VA examination in July 2005 and obtained medical opinions in September 2007 and in November 2008. As the examination reports and opinions are based on a review of the Veteran's history and provide opinions with adequate rationale so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the medical history and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that that his current kidney disease is a result of his active duty service. While acknowledging that protein was detected in his urine prior to his enlistment, he contends that it continued to be identified during his service in periodic examinations and a 1990 consultation report. The Veteran further contends that his current renal insufficiency and proteinuria is secondary to hypertension. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1). To rebut the presumption of sound condition for a disability not noted on the entrance examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence that the disease or injury was not aggravated by service may b shown by a lack of aggravation, that is, no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. In addition to the above, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. In making all determinations, the Board must fully consider the lay evidence. 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, supra. 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; 38 U.S.C.A. § 7104(a). Moreover, the 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, the Board, when considering whether lay evidence is satisfactory, the Board may 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). An expert opinion is adequate if it (1) is based on a correct factual premise, (2) is based on the pertinent medical history and examinations, (3) is not plagued by ambiguity or inconsistency, and (4) provides sufficient detail to fully inform the Board on its medical question. There is no reasons-or-bases requirement for medical examiners, and medical reports are to be read as whole, taking into consideration the history, tests, and examinations upon which the report is based. Monzingo v. Shinseki, 10-922 (Nov. 21, 2012). In June 1979, the Veteran was medically disqualified temporarily for albuminura. In August 1979 on enlistment medical examination albuminuria was identified in the summary of defects and diagnoses. However, the Veteran was found to be qualified for enlistment. In September 1985, the Veteran complained of low back pain, initially thought to be referred pain secondary to renal stones. In October 1985, a work-up was negative and the assessment was mechanical low back pain. In July 1990, on an internal medicine consultation report, the impression was proteinuria that was asymptomatic. Periodic lab results intermittently showed that the Veteran continued to have abnormally high levels of protein in his urine. In December 1991 history included protein in the s urine. Contemporary lab results showed abnormally high protein levels. The most probative evidence of record constitutes clear and unmistakable evidence that the Veteran's renal insufficiency and proteinuria existed prior to his enlistment into the Army in August 1979, as urinalyses revealed elevated protein levels in June 1979 and August 1979. It is acknowledged that several VA treatment records dated as early as April 1996, note the Veteran's history of proteinuria since service or 1984, and a July 1998 letter from the Veteran's treating VA physician notes that a renal biopsy (conducted in May 1996) showed a chronic long-standing process consistent with mild to moderate arteriolar-nephrosclerosis. Of more probative weight are the September 2007 and November 2008 VA examiners' opinions that there was clear evidence that the Veteran's proteinuria preceded his entrance into the military that was most likely caused by or the result of hypertensive nephrosclerosis. The opinions are based on a review of Veteran's claims files, including the contemporary service treatment records which show proteinuria to be present prior to enlistment. Having determined that the Veteran's renal insufficiency and proteinuria clearly and unmistakably pre-existed service, the case then turns on whether the pre-existing disability was aggravated during active duty. Although the Veteran's proteinuria was noted intermittently during his service, there is no indication that he had any associated disability during such service. In July 1990, the condition was asymptomatic. In December 1991 history included proteinuria, but the genitourinary clinical evaluation was normal. In November 2008, a VA examiner expressed the opinion that there was no evidence that the Veteran's pre-existing kidney disease was aggravated beyond the normal progression during his military service, noting that there were no identified increased manifestations of kidney disease attributed to service. After service private and VA treatment records show no evidence that the Veteran's current renal insufficiency and proteinuria was aggravated by active duty. Although VA records and a June 2007 VA nephrology consult indicate that the Veteran's current kidney disease was likely secondary to hypertension, service connection has been repeatedly denied for hypertension, most recently in a February 2010 decision which found the Veteran had not submitted new and material evidence to reopen the claim. Therefore, a claim for service connection for renal insufficiency and proteinuria secondary to hypertension has no factual or legal merit. 38 C.F.R. § 3.310(a). Although the Veteran asserts that his current renal disease either had its onset in service or was aggravated by service or was caused by or aggravated by hypertension, the opinions of the VA examiners are more probative and credible than the Veteran's assertions. While the Veteran, as a licensed practical nurse, has some medical training, it has not been established that he is qualified through education, training, or experience to offer a medical opinion concerning renal disease. The most probative evidence of record establishes that the Veteran's currently diagnosed renal insufficiency and proteinuria clearly and unmistakably pre-existed service and was not aggravated by service and the disability is not caused by or aggravated by a service-connected disability. ORDER Service connection for renal insufficiency and proteinuria is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs