Citation Nr: 1321696 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-22 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability, claimed as secondary to a service-connected left hip disability. 2. Entitlement to service connection for a kidney disability, claimed as secondary to a service-connected left hip disability. REPRESENTATION Appellant represented by: Hugh F. Daly, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 2000 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a July 2011 rating decision, the RO granted service connection and assigned a 100 percent schedular rating for bipolar disorder, effective June 6, 2008. The RO determined that the decision represented a full grant of all benefits sought on appeal, and that the issue of a TDIU was no longer applicable due to the assignment of a 100 percent schedular rating for the psychiatric disorder. Although it is not categorically true that assignment of a total schedular rating renders a TDIU claim moot, see Bradley v. Peake, 22 Vet. App. 280 (2008), given that the TDIU in this case was raised only in the context of the bipolar disorder claim (and not by the Veteran in the form of an allegation that all of his service-connected disabilities have rendered him unemployable), the Board agrees with the RO determination that the assignment of a total schedular evaluation for the bipolar does render the TDIU claim moot in this particular case. Furthermore, the Board notes that the Veteran and his representative were advised of the RO's determination regarding the resolution of these claims at the time, and neither subsequently expressed disagreement with the determination. In regard to the Veteran's claim for service connection for a kidney disability, the Board sent the appellant's claim for a cardiologist's expert medical opinion from the Veteran's Health Administration (VHA) under the provisions of 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). Normally, the Board is required to provide notice of the VHA opinion to the appellant and afford him time to submit a response to the opinion if desired. However, as the Board is granting the claim for service connection for the kidney disability in full, there is no need to provide notice of the opinion and the appellant is not prejudiced in proceeding with the adjudication of the claim. The Board observes that there has been some question as to the correct representative in this case. In that regard, the Board contacted the Veteran in February 2013 requesting that he clarify his wishes for representation. He was notified that, according to the Board's records, correspondence had been received in January 2012 stating that Hugh F. Daly was no longer representing him in his claim. He was further advised that a thorough review of the claims file and a temporary file at the RO revealed that the subject correspondence was not of record. He was provided with his options regarding representation and advised that if he did not respond the Board would assume that Mr. Daly continued to represent him. No response has been received from the Veteran. Accordingly, the Board has listed Mr. Daly above as the Veteran's representative. FINDINGS OF FACT 1. Service connection for a back disability as secondary to the Veteran's left hip disability was denied in a May 2006 rating decision; the Veteran did not appeal. 2. The evidence received since the May 2006 rating decision is cumulative or redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. 3. Resolving doubt in the Veteran's favor, kidney disability is related to the service-connected left hip disability. CONCLUSIONS OF LAW 1. The May 2006 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2012). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Kidney disability is proximately due to the service-connected left hip disability. 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 representative 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) (2012); 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The Court has also issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. The Board having determined that service connection for a kidney disability is warranted, no further discussion of the VCAA is necessary with respect to that issue. A letter dated in March 2005 explained the evidence necessary to support a claim for service connection. The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. A June 2008 letter discussed the evidence required to reopen the Veteran's back disability claim. The defect existing at the time of the previous final decision was identified and the Veteran was advised of the meaning of the terms "new" and "material" in the context of reopening a claim. In June 2008 the Veteran was advised of the status of his claim. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. Regarding the claim of entitlement to service connection for a back disability, the Veteran was afforded a VA examination. This examination did not address the question of service connection on a secondary basis. As will be discussed below, the RO scheduled additional examinations to address this question. Unfortunately, the Veteran failed to report for the scheduled VA examinations. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA to the extent possible under the circumstances. Furthermore, the Board notes the case of Woehlaert v. Nicholson, 21 Vet. App. 456 (2007), wherein the appellant argued that the Board was obligated to reopen his claim because the RO had arranged for an examination and that the examination in question was inadequate. In that decision, the Court held that the Board was not obligated to reopen a claim merely because the RO reopened the claim and undertook development such as obtaining a new examination or opinion. Furthermore, in Woehlaert, the Court also held that the adequacy of any such examination or opinion is moot if the Board determines that new and material evidence has not been presented, although the Board must certainly consider the results of such an examination or opinion as it would any evidence of record. Thus, even if the first VA examination was inadequate because the Veteran's theory of entitlement was not considered, any such inadequacies are moot as the Board is finding that new and material evidence has not been received to reopen the claim. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection for a Kidney Disability Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a). 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). 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; see also 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). When there is an approximate balance of positive and negative 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) (West 2002). An April 2002 VA treatment record indicates the Veteran's report that he took Celebrex. Subsequent VA treatment records reflect that the Veteran was taking various medications, to include Motrin and Vicodin. In January 2011 the Veteran was hospitalized at a non-VA facility. His creatinine was 9.1 and base urea nitrogen was 31. On nephrology consultation the Veteran reported taking Ibuprofen over the counter on an inconsistent basis for chronic pain. The provider noted that the Veteran's Lithium had been discontinued four months previously; he discussed the possibility that the Veteran might have Lithium induced chronic interstitial nephritis. In April 2012 the Board requested an expert opinion from a nephrologist. In June 2012 a VA nephrologist reviewed the Veteran's history. He noted that bipolar disorder was treated with Lithium from February 2007 to November 2010. He also noted that the Veteran had chronic hip pain for which he used nonsteroidal anti-inflammatory (NSAID) medication, both prescribed by VA and on an over the counter basis. He indicated that in July 2010, the Veteran's blood creatinine was 1.42 mg/dl, normal range being 0.6-1.3 mg/dl. He noted that kidney function and lithium level were monitored routinely during the Veteran's mental health clinic visits and that it was appropriately decided to discontinue Lithium therapy when he was found to have a rising creatinine level in July 2010. He indicated that the Veteran was also taking NSAIDs and that the abnormal creatinine might be related to Lithium and/or NSAIDs. He noted that detailed history of NSAID use was not available for review. He concluded that since Lithium was discontinued following abnormal creatinine findings, it was unlikely that further worsening of kidney function was due to consequences of previous Lithium use. With regard to whether the Veteran's use of pain medication for his left hip disability was related to a kidney or renal disability, the nephrologist noted that NSAID use could cause both acute kidney injury and chronic kidney disease. He concurred with the opinion rendered in January 2011, noting that it was likely that the Veteran had acute renal failure from acute interstitial nephritis related to antibiotics or Ibuprofen. The reasonable doubt doctrine requires that there be a "substantial doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102 (2011); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In light of statements from two physicians, one a nephrologist, pointing to a possible relationship between the Veteran's medications and a kidney disability, the Board finds that the evidence is in relative equipoise with respect to the question of whether a kidney disability is proximately due to medications prescribed for the Veteran's service-connected disabilities. As such, service connection for a kidney disability is granted. Petition to Reopen - Back Disability Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). As noted, service connection for a back disability on a secondary basis was denied in a May 2006 rating decision. The RO determined that there was no evidence of a relationship to the service-connected left hip disability and no evidence that the claimed disability was incurred in service. The evidence of record at the time of the May 2006 rating decision included service treatment records, which reflect that the Veteran sustained a left femoral neck stress fracture in June 2000. A November 2000 report of medical history reflects the Veteran's denial of recurrent back pain or any back injury. A December 2000 medical board summary indicates that there were no significant physical abnormalities on general examination. The diagnosis was chronic left hip pain secondary to femoral neck stress fracture; the examiner determined that the Veteran did not meet the physical standards for retention. A private emergency room record indicates that the Veteran was seen in October 2002 with complaints of back pain since he broke his hip two years previously. The impression was low back pain. Private treatment records dated in 2004 reflect complaints of back pain. A June 2004 record indicates an assessment of back pain, secondary to old trauma. A July 2004 record notes back pain of uncertain etiology. An October 2004 record likewise indicates back pain of uncertain etiology. In January 2005, the Veteran submitted a claim of entitlement to service connection for a back disability. He related that his hip condition had aggravated the claimed back disability. A September 2005 report from a VA facility indicates that the Veteran failed to report for joints and spine examinations. In March 2006 the Veteran submitted a statement expressing his willingness to report for a VA examination. He subsequently failed to report for scheduled examinations in May 2006. The Veteran submitted his petition to reopen his claim in June 2008. On VA examination in September 2008, the Veteran's history was reviewed. Following examination, the examiner opined that the current back condition was less likely as not caused by or a result of service. He noted that the Medical Board summary dated in February 2001 made no mention of a back injury having occurred when the Veteran sustained his left hip injury. He also noted that service treatment records did not document any back condition. In May 2010, service personnel records were received by the RO. They consisted of the Veteran's DD Form 214, a preseparation counseling checklist, a life insurance election and certificate, and information concerning classification and assignments. The Veteran failed to report for a VA spine examination in May 2011. He again failed to report for a VA spine examination in September 2011. Having reviewed the record, the Board initially finds that the service department records received in May 2010 are not relevant to the issue of entitlement to service connection for a back disability. As noted, these records consist of discharge information and basic personnel matters. They do not include any information regarding the currently claimed back disability or its purported relationship to service or a service-connected disability. Accordingly, the Board finds that these records are not relevant to the claim and that the appeal need not be reconsidered pursuant to 38 C.F.R. § 3.156(c). Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for a back disability. As discussed, the RO denied the Veteran's claim because the evidence did not establish a relationship between the claimed back disability and the Veteran's service-connected left hip disability. Since then, there has been no medical evidence added to the file which would establish such a relationship. The Veteran's assertion of a relationship was before the RO at the time of the May 2006 rating decision and is therefore cumulative. In essence, the evidence added to the record since the May 2006 rating decision does not raise a reasonable possibility of substantiating the claim. In summary, the defect existing at the time of the prior final decision has not been cured, and the claim of entitlement to service connection for a back disability may not be reopened. ORDER Entitlement to service connection for a kidney disability is granted. Entitlement to service connection for a back disability is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs