Citation Nr: 1311517 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-46 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for renal/ureter calculi. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1970. He had active guard reserve (AGR) from April 1983 to December 1998. The Veteran is service-connected for a left index finger laceration based upon his second period of service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Calculi were not manifested during the Veteran's first period of duty or within one year of separation. 2. Calculi were manifest during AGR and again in 2005. 3. The Veteran has not had calculi since the initiation of the appeal. CONCLUSION OF LAW Chronic residuals of calculi, renal or urethral, were not incurred or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. 38 C.F.R. § 3.159(b)(1). An October 2009 VCAA letter informed the Veteran of what evidence was required to substantiate his claim for service connection for kidney stones. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran was afforded a VA examination in November 2009 to determine the nature and likely etiology of the claimed disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2009 VA examination report considers all of the pertinent evidence of record as well as the Veteran's statements. The examination report is adequate for rating of the Veteran's disability under the applicable rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Law and Regulations As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in- service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn n. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). As calculi of the kidney are considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Legal Analysis After reviewing the evidence pertaining to the claim in its entirety, the Board concludes that service connection for presumptive renal calculi is not warranted. The Veteran contends that he is entitled to service connection for kidney stones, as he had an occurrence during AGR service and believes that the episode makes him prone to future occurrences of kidney stones. The Veteran's service treatment records from active duty do not reflect any complaint, treatment, or diagnosis with respect to the claimed kidney stones. The June 1970 separation examination report shows the Veteran's anus and rectum (hemorrhoids, fistulae, prostate, if indicated) and endocrine system were normal on clinical evaluation. A May 1986 emergency room record notes classical symptoms kidney stones with no prior history. Service treatment records from the Veteran's period of AGR service note the occurrence of a kidney stone. In a December 1986 Report of Medical History form, the medical examiner noted the Veteran had a kidney stone in 1986, passed, with no current noticeable symptoms. In a December 1990 Report of Medical Examination, the examiner noted renal calculi, 1986, no current noticeable symptoms. In July 2005, the Veteran was seen in the emergency room for left flank pain. An accompanying computed tomography (CT) scan revealed two small residual left renal calculi and a left ureterovesical junction calculus with moderate obstruction. The right kidney was unremarkable. The diagnosis was left renal colic. A claim of entitlement to service connection for kidney stones was received in October 2009. On VA examination in November 2009, the examiner noted he reviewed the claims folder. The Veteran reported a history of kidney stones that passed spontaneously. He indicated the first kidney stone occurred many years prior. He reported his second kidney stone took two days to pass, and his most recent kidney stone occurred in August 2005. The Veteran denied lethargy, weakness, and anorexia. He urinates five times a day, but has no hesitancy, dysuria, hematuria, incontinence, or erectile dysfunction. The Veteran reports no surgery on the urinary tract and denied a history of recurrent urinary tract infections, acute nephritis, hospitalization for urinary tract disease, and malignancy. He receives no treatment to prevent future kidney stones, and has been instructed to drink a lot of water. The Veteran is not on any medications for the urinary tract. Upon physical examination, the examiner indicated the Veteran's genitalia were normal with testes descended bilaterally. No inguinal hernias were found. The examiner diagnosed a past history of three kidney stones, all passed spontaneously, and currently causing no difficulty with employment or daily activities. In addition, a urinalysis and metabolic panel were unremarkable. The Board accepts that calculi are a chronic disease. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303(b). Furthermore, during service there were sufficient findings to establish the disease process. 38 C.F.R. § 3.303(b). However, the law requires the existence of disability. 38 U.S.C.A. § 1110, 1131. Here, neither the lay nor medical evidence established that he has had disability at any time during this appeal period. See Brannon v. Derwinski, 1 Vet. App. 314, 315 (1991); see also Brammer v. Derwinski, 3 Vet. App. 223 (1992) (entitlement to service connection requires medical evidence showing that the veteran currently has the claimed disability). The United States Court of Veterans Claims (Court) has held that the Veteran's claim may still prevail if the Veteran was diagnosed with a chronic disability during the pendency of the appeal, even if most recent medical evidence suggests the disability resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, as discussed above, the record shows that the Veteran has never been diagnosed as having kidney stones or residuals of kidney stones since he filed his claim for entitlement to service connection in October 2009. His most recent calculi manifestation was in July 2005. Thus, the facts here are distinguishable from the facts present in McCain because the Veteran has not had disability during the course of the entire appeal period. As such service connection for kidney stones is not warranted in the absence of a present disability. The November 2009 VA medical examination did not reveal current kidney stones or residuals of kidney stones. The Veteran denied pathology associated with kidney stones and does not take any medication for the urinary tract. The only recommendation he has been given to prevent future kidney stones is to drink more water. Moreover, the Veteran does not allege to have current kidney stones. The Veteran filed the claim for service connection in October 2009; however in that claim, the Veteran wrote that his most recent kidney stone occurrence was in 2005. There is no evidence to suggest that the Veteran had a current disability at any point during the appeal period associated with this claim. Although the Veteran states that he is more prone to kidney stones because of his history of kidneys stones, the Board finds the more probative evidence establishes no current disability in that respect. The Board notes that the Veteran is competent to report symptomatology as such come to him through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board notes, however, that he has not identified any evidence that would tend to show current disease or injury in the nature of kidney stones. The Veteran does not refer to any specific symptoms referable to kidney stones in his statements and he does not report seeking treatment for kidney stones during the appeal period. In reaching this determination, we again reference the law which requires the existence of disability that is due to an in-service disease or injury. 38 U.S.C.A. §§ 1110, 1131. Here, the appellant had, by law, a chronic disease during service. 38 U.S.C.A. § 1101. However, during this appeal period he has not had disability. The fact that he has been advised to remain hydrated is not a disability or an impairment and there have been no other residuals or manifestations of the disease process. As the Court has noted, the definition of disability comports with the everyday understanding of disability, which is defined as an inability to pursue an occupation because of physical or mental impairment. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Even when the standard of "impairment" is used as a definition of disability, the facts establish that he does not have an impairment. See, Allen v. Brown, 7 Vet. App. 439 (1995). The Board finds that the preponderance of the evidence is against the claim for service connection because the evidence does not show any evidence of a current diagnosis of kidney stones or residuals thereof. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 53. ORDER Service connection for uretal/ renal calculi is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs