Citation Nr: 1311455 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-23 751 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for loss of kidney function. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to May 1973 and from November 1974 to November 1977. The Veteran also spent a period of time in the Army Reserves. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Seattle, Washington. It was remanded for additional development in July 2012. The Veteran testified before the undersigned Veterans Law Judge at a December 2011 hearing. The issue of the evaluation of PTSD was withdrawn by the appellant. This was addressed in the prior decision. The reason for addressing the issue in an SSOC is not known. FINDING OF FACT The Veteran's kidney disorder was not shown to have been caused or made worse by a disease or injury in service. CONCLUSION OF LAW A kidney disorder was not incurred in, or aggravated by, service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in September 2007 which explained how VA could help him obtain evidence in support of his claim. The September 2007 letter also informed the Veteran of what the evidence needed to show in order to establish service connection for a claimed disability, as well as how VA assigns ratings and effective dates. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, private treatment records, the written contentions of the Veteran, and a transcript of the Veteran's testimony at the December 2011 hearing. A VA examination was provided in accordance with the July 2012 remand of this case. During the hearing, the Veterans Law Judge clarified the issues, explained the concept of service connection and enquired as to the existence of outstanding records. The actions of the Veterans Law Judge supplements VCAA and complies with 38 C.F.R. § 3.103. Service connection The Veteran contends that he has a kidney disorder as a result of his military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including cardiovascular-renal disease, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the context of Reserve or National Guard service, active military service is defined to include any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24). Service treatment records from the Veteran's period of active service do not show any kidney related diagnoses or treatments, and the Veteran's urine was negative for sugar and albumin at his separation examination in November 1977. On a reserve physical examination dated in February 1982, the Veteran reported that he was being followed for excess protein in his urine. It was allegedly secondary to a right kidney infection. While this is the first mention in the record of his proteinuria, it is clear that it onset prior to the date of the examination because the Veteran was already receiving medical treatment at that time. Moreover, the Veteran does not contend that his proteinuria onset during his reserve service. Treatment records reflect a history of proteinuria since approximately 1981. A report of a renal biopsy in July 1982 indicated that the Veteran had persistent nephritic syndrome for almost one year at that time. In October 2004, the Veteran's physician opined that the Veteran's kidney condition had nothing to do with Agent Orange and that he would not write a letter suggesting that there was any relationship. At the Veteran's hearing in December 2011 he testified that he had an infection in service in Vietnam during which time he had a high fever and dysentery. He was allowed to return home for a period of time but was then returned to duty. He testified that he had jaundice during the time of his infection. He testified that he had healthy kidneys when he entered service, but he believed that they were damaged when he left although this was not discovered until a sports physical in 1981. The Veteran testified that a physician told him that he had "scar tissue" on his kidneys from prior infection and that the scar tissue was causing the protein loss. He also provided similar information in a written statement. The Veteran was afforded a VA examination of his kidneys in August 2012. The examiner noted the Veteran's past medical history, including his report of an in-service infection with a high fever, diarrhea, and weight loss. The Veteran did not report any other kidney infections. With regard to the in-service infection, the Veteran reported that he had a large infected boil that had to be lanced. The Veteran reported that he lost 20 pounds and had jaundice (brown in his eyes) and diarrhea at the time of his infection. After examining the Veteran, the examiner determined that it was less likely than not that the Veteran's kidney condition was related to service, notwithstanding his credible report of an infection with systemic illness and possible jaundice. He also had other infections while he was in service which were treated with antibiotics. However, he had subsequent urinalyses in service between 1974 and 1977 which were all negative for albumin. If the Veteran had developed proteinuria, albuminuria, or nephritic syndrome in service, it was more likely than not that his in-service urinalyses would have been positive for albumin. Recent laboratory testing was negative for any systemic or infectious illnesses to explain the Veteran's proteinuria, such as evidence of past hepatitis or other infections that the Veteran might have contracted during his military service. He also opined that the Veteran did not currently meet the criteria for a diagnosis of nephritic syndrome since his proteinuria and creatnine had been stable for many years. The renal biopsy in 1982 was not adequate to ascertain the cause of the Veteran's proteinuria, and no subsequent biopsies were carried out. Initially, we note that 38 C.F.R. § 3.303(b) is not applicable since kidney pathology was not noted during active service. Furthermore, the evidence does not show that it is at least as likely as not that the Veteran's proteinuria is related to his military service. Proteinuria was not diagnosed until approximately four years after his service. Although the Veteran had a systemic infection while he was in Vietnam, as well as other infections after that, his urine remained negative for albumin throughout his military service. The VA examiner opined that if the Veteran had proteinuria or nephritic syndrome in service his urinalyses would more likely than not have been positive for albumin, which was not the case for this Veteran. The examiner also noted that testing was negative for infections such as hepatitis that the Veteran could have contracted in Vietnam to explain his proteinuria. The Board has considered the Veteran's opinion that his post-service kidney condition onset during the time of his in-service infection in Vietnam, but his lay opinion is less probative than that of the VA examiner, who examined the Veteran, reviewed his history, and determined that it was less likely than not that his current proteinuria was related to his service. In reaching this determination, the Board accepts that the appellant had some form of infection during service that required treatment. See 38 U.S.C.A. § 38 U.S.C.A. § 38 U.S.C.A. § 1154(b). However, the evidence must still establish the existence of current disability and a link to the in-service event. Here, such evidence is lacking. Furthermore, we find credible the Veteran's report that he was told that the condition may be due to a prior infection. But, even when accepted as true, this evidence does not establish that there was a relationship to an in-service infection. Rather, the most convincing evidence, established by a VA examiner, establishes that the renal findings are attributable to a remote cause rather than an in-service cause. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for a kidney disorder is denied. H. N. SCHWARTZ Department of Veterans Affairs