Citation Nr: 1317148 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-09 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for nephrolithiasis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty with the Air Force from June 1965 to December 1968. He served with the Army National Guard from July 1981 to June 1987, with active duty training from June 12, 1982 to June 26, 1982; February 5, 1983 to February 19, 1983; and June 2, 1984 to June 16, 1984; and active duty from December 1985 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT Nephrolithiasis did not begin during active duty or active duty for training, was not aggravated during active duty or active duty for training , and is not causally related to active duty or active duty for training. CONCLUSION OF LAW The criteria for service connection of nephrolithiasis have not been met. U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6(a), 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran seeks service connection for nephrolithiasis. He contends that the condition began while he was in the National Guard and that it was aggravated by his second period of active duty. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153 (West 2002); 38 C.F.R. 3.306(a)(b)(c). The term "active military, naval or air service" is further defined as (1) active duty or a period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C.A. § 101(24). Service connection for disability arising from inactive duty training is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, not pertinent here). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). As such, for purposes of VA benefits, the key periods are those specific, discrete periods of active duty; any particular dates of active duty training during which the Veteran incurred or aggravated a disease or injury in line of duty; or a particular date of inactive duty training during which the Veteran incurred or aggravated a disease in line of duty. Thus, simply being affiliated with a National Guard unit would not itself establish a basis for entitlement to VA benefits for any disability arising over the course of that same period. Rather, as indicated, to establish VA service connection benefits, the claimed disability must have begun or been aggravated in line of duty during a specific period of active duty; during a specific period of active duty for training; or have resulted from an injury in line of duty during a period of inactive duty for training. In this case, because nephrolithiasis is a disease, service connection would not be available if it was found to have been incurred during a period of inactive duty for training. To warrant service connection for nephrolithiasis, it would need to be shown that it was incurred or aggravated during a period of either active duty for training or active duty. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The November 1968 separation examination record reflects no findings or histories indicative of nephrolithiasis and service treatment records do not show any complaints of or treatment for nephrolithiasis while the Veteran was on active duty for training and he has not alleged otherwise. The July 1981 National Guard enlistment examination record reflects no findings or histories indicative of nephrolithiasis. A July 1982 discharge summary indicates that the Veteran underwent a right pyelolithotomy in March 1982 for bilateral calcium oxylate renal calculi. The Veteran was admitted on July 14, 1982, symptomatic with left renal calculi, for a left coagulum pyelolithotomy. The discharge diagnosis was left renal stone. The December 1984 active duty examination record reflects the Veteran's history of kidney stones in 1982. The record indicates that the Veteran had no sequelae and the Veteran was found clinically normal. A January 1985 treatment record reflects the Veteran's history of kidney stones in 1982. The Veteran reported a six-month history of pain in the left side of the abdomen which radiated to the back, for which he was being treated by a civilian physician. He denied gross hematuria. After examination he was assessed with questionable kidney stones. There was no obstruction and no stones were seen in the ureters. The Veteran returned for treatment in August and September 1985, again reporting back pain. Testing in September 1985 revealed kidney stones. In January 1987, an intravenous pyelogram was performed, which showed renal stones in the renal collecting system. The Veteran underwent a lithotripopscopy for renal calculi in February 1987. The March 1987 separation examination record reflects normal clinical findings for the relevant systems. The April 1987 Medical Board Report reflects a diagnosis of nephrolithiasis, which the medical board determined began in 1982, was incurred while the Veteran was entitled to base pay, did not exist prior to service, and was permanently aggravated by service. Subsequent records reflect treatment for kidney stones. See, e.g., March 1992 Prescott Clinic treatment record; August 2007 and July 2010 VA treatment records. A VA examination was conducted in October 2011. The examiner documented the Veteran's treatment for kidney stones, noting that he had undergone left coagulum pyelolithotomy and nephrolithotomy procedures in July 1982, a right pyelolithotomy in March 1982, and surgery in February 1987. The Veteran also reported the removal of kidney stones in 1986, lithotripsies in 1988, 1990, and 1993, and additional episodes in 2008 and 2009. The examiner diagnosed the Veteran with recurrent nephrolithiasis, post-surgery, bilaterally, and lithotripsy, and acknowledged that this was often a recurrent condition. The examiner stated that he was unable to determine whether the recurrence the Veteran experienced during service went beyond the normal progression of the disease without resorting to mere speculation. The examiner failed to provide any rationale for his inability to reach a conclusion. Given the inability of the examiner to address the critical question in this case, the Board obtained an opinion from a Veterans Health Administration (VHA) specialist in February 2013. The specialist, a chief of nephrology, determined that the Veteran had severe stone disease with many recurrences over the years. The specialist noted that the condition was first diagnosed in 1982, when the Veteran was 36. The specialist explained that "this age is typical, since peak incidence of kidney stones is in the 3rd decade of life." The specialist added that although 60-65% of patients do not get stone relapse after the first episode, the Veteran was not in this group. Rather, he had recurrent episodes in 1985 and 1987. The specialist indicated that his review revealed no mention of any standard metabolic work-up for recurrent kidney stone or kidney stone analysis. The specialist explained that metabolic investigation is the only way to find out the underlying cause of recurrent kidney stones. The specialist reported that although the cause was not known, most of the causes were genetic or due to other intrinsic medical disease like sarcoid, hyperparathyroidism, renal tubular acidosis, or Crohn's disease. The specialist added that diets especially high in protein and salt exacerbate most cases of kidney stones and limited fluid intake or hot weather with excessive sweating can exacerbate certain kinds of kidney stones. The specialist indicated that "these life style factors are reversible," however, and "should not have a permanent effect after the diet had become healthy." The specialist determined that because high protein, high salt, and low vegetable intake and reduced fluid intake can increase risks of some form of kidney stone, one could argue that during the second tour of service, the Veteran's diet was favoring stone formation. The specialist found that this would still fail to explain the continuing occurrence of stone before and after service, however because the adverse effect of unhealthy diet typically goes away once diet is improved. Furthermore, the specialist noted that, in his experience, the military diet was not substantially different from the typical American diet, as both were equally unhealthy and favorable to kidney stone formation. In summary, the specialist found no proof or reasonable suspicion that the second period of active duty aggravated the Veteran's recurrent kidney stone disease. The specialist explained that the Veteran had severe stone disease before that time and, "as is the natural course of severe stone disease, it persisted many years after the military tour ended in 1987." Service connection is not warranted for nephrolithiasis based on the Veteran's active service with the Air Force. The service medical records reflect no findings or histories suggestive of nephrolithiasis, and the first diagnosis postdates separation from this period of service by more than 13 years. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim.). Furthermore, the Veteran has not alleged the existence of symptoms suggestive of kidney stones during this period of service, and there is no medical evidence suggesting a link between this period of service and nephrolithiasis. The Veteran does not contend that his nephrolithiasis is related to his first period of service; rather, he believes it is related to his service with the Army National Guard. After review of the evidence, the Board finds service connection is not warranted based on the National Guard service. Initially, the Board finds the nephrolithiasis did not begin during active duty or active duty training. Although the evidence documents that the nephrolithiasis was initially diagnosed and treated in March 1982, while the Veteran was a member of the Army National Guard and entitled to "base pay," the evidence indicates that the Veteran was not performing active duty or active duty training at that time of the initial diagnosis and treatment. See Retirement Credits Record (indicating that the only active duty for training in 1982 was from June 12 to June 26); DD-214. As such, the Board finds the nephrolithiasis did not begin during either active duty or active duty for training. Furthermore, the Board finds the evidence does not indicate that the nephrolithiasis was aggravated during active service with the Army National Guard. The Board acknowledges that the record documents treatment for kidney stones during the second period of active service. However, temporary or intermittent flare-ups of a pre-existing disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The record does not include any probative evidence indicating a permanent worsening of the nephrolithiasis during service. The Board acknowledges that the April 1987 Medical Board determined the nephrolithiasis was permanently aggravated by service. The Medical Board did not provide a rationale for this determination, however. As such, the Board finds the determination lacks probative value. In contrast, the Board finds the VHA nephrologist's opinion that there was no aggravation is highly probative because it is supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Board further acknowledges that the Veteran believes his condition was aggravated by service. However, the Veteran's statements are not competent evidence of aggravation: he has not reported a symptomatic history suggestive of an permanent increase in severity or frequency of the nephrolithiasis during and after active service, and the record does not otherwise suggest that the Veteran is competent to render an opinion on aggravation because it is a question of medical complexity and requires specialized knowledge. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, the evidence does not indicate that the nephrolithiasis is causally related to the National Guard service. There is no competent evidence suggestive of such a link. Thus, service connection is not warranted and the claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Substantially compliant notice was sent in February 2005 (concurrent with notice of the rating decision), and the claim was readjudicated in February 2007 statement of the case. Mayfield, 444 F.3d at 1333. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Dingess, 19 Vet. App. at 473. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records and personnel records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. A VA examination was conducted and opinion obtained in October 2011. 38 C.F.R. § 3.159(c) (4). Although the opinion was not adequate, a probative opinion was subsequently procured from a VHA specialist. The VHA opinion was predicated on a full reading of the record, the doctor considered all of the pertinent evidence of record, and provided a complete rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met. 38 C.F.R. § 3.159(c) (4). Moreover, the Veteran's representative acknowledged the receipt of the opinion, but did not voice any objection to its adequacy. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002): VA obtained updated VA treatment records and obtained a probative opinion. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for nephrolithiasis is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs