Citation Nr: 1317872	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  07-10 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a genitourinary/endocrine system disorder, to include protein in the urine, hypospadias, or pheochromocytoma.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The Veteran served on active duty from October 1988 to February 1993. 

This case was previously before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The Veteran attended a hearing before the undersigned in July 2010.  The claim was initially remanded by the Board for additional development in February 2011.  Thereafter, a May 2012 Board decision reopened the claim, and the reopened claim was remanded by the Board at that time for additional development.  Following the receipt of additional evidence, a Supplemental Statement of the Case (SSOC) was issued in March 2013.

Additional evidence received in April 2013 subsequent to the March 2013 SSOC in the form of reports from the Social Security Administration (SSA) is either duplicative of other reports from the SSA or not pertinent to the case.  Moreover, the Veteran appears to have waived original consideration of such records in a response received from him in April 2013.  As such, a remand for consideration of these records by the RO in an SSOC is not necessary.  See 38 C.F.R. § 20.1304(c).   

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).

FINDING OF FACT

For the entire appeal period, the Veteran does not have a current acquired disability due to a genitourinary/endocrine system disorder for which service connection may be granted.  

CONCLUSION OF LAW

The criteria for the establishment of service connection for genitourinary/endocrine system disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 
REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (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. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits; but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328(Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable RO decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice").

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, an August 2005 letter, sent prior to the September 2006 rating decision which gave rise to this appeal, advised the Veteran of the evidence and information necessary to substantiate his service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information.  An October 2006 letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  As the claim was thereafter readjudicated, to include by way of a March 2007 statement of the case, any timing deficiency with respect to the October 2006 letter has been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).  Additionally, the Veteran was represented by a certified Veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. 

Relevant to the duty to assist, the Veteran's service treatment reports (STRs), as well as SSA, private, and VA post-service treatment records, have been obtained.  The Veteran was also afforded a VA examination addressing the claim in June 2012, with accompanying addenda/opinions completed in December 2012, February 2013, and March 2013.  In its totality, the medical evidence obtained since the May 2012 remand is adequate to adjudicate the claim and reflects compliance with the directives of the Board's May 2012 remand.  The record also documents efforts to obtain additional VA and private medical evidence as requested in the May 2012 remand.  See May 16, 2012, letter issued to the Veteran.  As such, the Board finds that there has been substantial compliance with its May 2012 remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).

The Veteran has not identified any additional, outstanding records that have not been requested or obtained that reasonably would aid in substantiating the claim.  In this regard, while the Veteran in a statement received in April 2013 referred to the existence of March 2013 laboratory studies that he said document high blood and protein levels in his urine, laboratory results demonstrating such abnormal findings are already of record.  Thus, as the March 2013 laboratory results would be duplicative of other evidence of record and would not by themselves, as discussed below, demonstrate that presence of a current disability for which service connection could be granted, no reasonable possibility exists that a remand to obtain the March 2013 laboratory results would aid in substantiating the claim.  As such, a remand to obtain these records is not required.  38 U.S.C.A. § 5103A(a)(2).  [Moreover, such a remand would not be in accord with the wishes of the Veteran to the extent that in a waiver communication received in conjunction with the April 2013 statement, the Veteran requested that this case be forward to the Board "immediately."]  

In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA with respect to the issue adjudicated herein would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of 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 appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case with respect to the claim adjudicated herein, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claim.  

II.  Analysis

The Board has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  (The Virtual VA file contains VA clinical records dated through December 2012 that are documented to have been considered by the RO in the March 2013 SSOC.  As such, a remand for consideration of these records by the RO is not indicated.  38 C.F.R. § 20.1304(c)).  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits.  38 C.F.R. §§ 3.303, 4.9.  Therefore, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability.  VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). 

The VA General Counsel explained there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations.  A congenital or developmental defect, on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service.  VAOPGCPREC 82-90.

A threshold requirement for the grant of service connection for any disability is that the disability claimed must be present.  38 U.S.C.A. §§ 1110, 1131.  The Court has noted that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability, and that in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

With the above criteria in mind, the relevant facts will be summarized with an eye towards the threshold question of service connection: Is the claimed disability present?

The STRs reflect complaints of frequent urination in August 1991 with no genitourinary disability diagnosed at that time.  Urinalysis conducted in conjunction with the January1993 separation examination showed high levels of protein, white blood cells, and microhematuria.  It was recommended that repeat urinalysis be completed.  Such urinalysis was completed in February 1993 and said to also reveal abnormal findings.  No underlying genitourinary disability was diagnosed at that time.  

In April 1993, shortly after separation from service, the Veteran filed a claim for service connection on the basis of the abnormal urinalysis at separation.  The  Veteran failed to report to VA examinations scheduled for May and September 1993 in connection with this claim.  The Veteran's claim was denied in an October 1993 rating decision on the basis that the abnormal urinalysis did not by itself represent a disease for which service connection could be granted and the lack of any evidence of a disease or disability of the genitourinary system for which service connection could be granted.  

Thereafter in June 2005, the Veteran submitted an application to reopen his claim and, as indicated in the Introduction, his claim was reopened by the Board in a May 2012 decision.  Evidence found by the Board in this decision to warrant reopening the claim included VA treatment reports dated in September 2005, August 2006, and January 2007 reflecting a diagnosis of hypospadias (a birth defect that involves an abnormally placed urinary meatus) and a history of albuminuria.  Additional evidence found to warrant reopening the claim were VA treatment records, to include those dated in March 2012, indicating that the Veteran had been diagnosed with pheochromocytoma (a neuroendocrine tumor of the medulla of the adrenal glands).   

The diagnosis of pheochromocytoma will be addressed first.  The results of a July 2005 VA Meta-iodobenzylguanidine (MIBG) scan revealed findings said to be "suspicious" of this diagnosis.  In a July 14, 2005, follow up clinical report, it was noted that positive urine studies were "suspect due to the very high creatinine and clearance" and the assessment that it was "least probabl[e]" that the Veteran had pheochromocytoma.  Following urine studies for metanephrines were normal, and with no adrenal or paraganglionic masses were detected on a CT scan, it was the opinion of two VA physicians [one of whom characterized the positive MIBG results as being "weak" and "at best, borderline"], one who was the chief of endocrinology at the VA medical center that provided treatment for the Veteran, determined that it was not likely that the Veteran had pheochromocytoma.  See August 11, 2005, VA outpatient treatment reports.  

Reports from the June 2012 VA examination afforded the Veteran as directed by the May 2012 Board remand, reflect that the claims file was reviewed and noted that no genitourinary diagnosis had been rendered except for hypospadias.  Following the portion of the examination relevant to disability of the kidneys, the examiner concluded that it was less likely as not that a kidney disability was incurred in or caused by service.  In her rationale for this opinion, the examiner noted that pheochromocytoma is not a genitourinary problem but is instead a disability of the endocrine system.  She commented that, while it was observed initially in 2005 that the Veteran might have had symptoms and physical findings indicative of pheochromocytoma, subsequent workups resulted in an endocrinologist concluding that he did not believe that the Veteran had a pheochromocytoma but recommending further radiological studies.  Such studies were said to have been carried out with inconclusive or negative results.  

In a December 2012 addendum to this examination [with a February 2013 addendum from the examiner noting that the claims file had been reviewed in connection with this addendum], necessitated in part because of contradictory statements following that portion of the June 2012 VA examination devoted to a genitourinary disability as to whether the Veteran had a disability related to service, the examiner noted that hypospadias is a congenital defect and not a disease, and that this condition had no connection to service.  She also noted that hypospadias was not aggravated by service.  Here rationale was that the Veteran did not state that this was the case; that there was no evidence of treatment for the condition during service; and that there was no indication at the June 2012 VA examination that the condition had been aggravated by service.  She also noted that there was a "fairly long history of intermittent hematuria/proteinuria, but a definitive d[iagnosis] for it has never been achieved."  

A March 2013 opinion completed by the endocrinology chief of the VA facility where the Veteran has received treatment [as he indentified himself on the previously referenced August 11, 2005, VA outpatient treatment reports], said to have been based on a review of the all five claims files, was that the Veteran had no evidence of a pheochromocytoma.  He concluded that initial abnormal urine laboratory reports were likely due to collection error and that while an MIBG scan was suspicious/borderline for a pheochromocytoma, multiple repeat studies and a CT scan of the adrenals were normal.  No diagnosis was reported.  

The record reveals no medical opinions contradicting the negative VA opinions set forth, and the Board finds these opinions, which are documented to have been based on a review of the relevant clinical history, to be the most probative medical evidence as to the threshold question for service connection, as to whether the Veteran has a current disability due to a genitourinary or endocrine system disorder for which service connection be granted.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).

In particular with respect to pheochromocytoma, given the contemporaneous VA clinical records from July and August 2005 set forth above questioning the diagnosis of this condition, the Board finds no reason to substitute its judgment with that of the VA endocrinology chief in his March 2013 opinion as to whether the clinical evidence in fact demonstrated that the Veteran has this condition.  See Colvin, supra.  The Chief pointed to normal test results to support his opinion.  Similarly, there is no reason to question, or for the Board to substitute its judgment, for the conclusion by the VA examiner following the June 2012 VA examination and in her December 2012 addendum that the record did not document a diagnosed genitourinary disorder, aside from hypospadias.  Id.  

Specifically with respect to hypospadias, as the VA examiner in her December 2012 addendum found this to be a defect and not an acquired disease, and as there is no contention or evidence that this condition was subject to a superimposed disease or injury during service, service connection cannot be granted for this condition as a matter of law.  38 C.F.R. §§ 3.303, 4.9; VAOPGCPREC 82-90.  With respect to the abnormal urinalysis readings that have been demonstrated, such as proteinuria, given the absence in the clinical record of an acquired disease entity associated with these findings, service connection cannot be granted on the basis of these findings by themselves.  Id.; Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); see 61 Fed. Reg. 20440, 20445 (May 7, 1996).  

While the Veteran is competent to report complaints related to any of the conditions for which service connection is claimed, he is not competent, as a lay person, to attribute such complaints to a specific diagnosis.  In this regard, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., whether the Veteran has a medically diagnosed genitourinary or endocrine disorder for which service connection may be granted, such questions fall outside the realm of common knowledge of a lay person as they involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Therefore, any statements by the Veteran, to include those made in sworn testimony at his June 2008 hearing at the RO and the July 2010 hearing before the undersigned, attributing pertinent symptoms to a specific diagnosed disability for which service connection may be granted are not competent and thus entitled to no probative weight.

In conclusion, the most probative and credible evidence of record demonstrates that, for the entire period since the claim has been pending, there is no clinical or credible evidence of a current genitourinary or endocrine system disability for which service connection may be granted.  Service connection for these claimed disorders is not warranted because the threshold requirement for service connection has not been met.  

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim.  As such, that doctrine is not applicable with respect to this claim and it must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra.   


ORDER

Service connection for a genitourinary/endocrine system disorder, to include protein in the urine, hypospadias, or pheochromocytoma, is denied. 



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs