Citation Nr: 1323448	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  06-26 493	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

1.  Entitlement to service connection for orthostatic proteinuria.

2.  Entitlement to service connection for arthritis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel

INTRODUCTION

The Veteran had active duty service from June 1959 to May 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified at a Board hearing before a Veterans Law Judge in October 2006; a transcript of that hearing is associated with the claims file.  That Veterans Law Judge has since left the Board's employ, and the Veteran was informed of that fact as well as his right to a hearing before another Veterans Law Judge in a July 2011 letter.  The Veteran has not responded to that letter or otherwise indicated that he wished to have another hearing.  

This case was last before the Board in January 2013, when it was remanded for further development.  Since January 2013, during the pendency of the appeal, service connection for diabetes mellitus, type II, was awarded.  This was done by way of an April 2013 rating decision.  That issue is considered to be favorably resolved at this time and will no longer be addressed by the Board.

(The issue of entitlement to service connection for arthritis is addressed in the remand that follows the decision below.)


FINDING OF FACT

The Veteran has nephropathy manifested by proteinuria, which is a complication of his service-connected diabetes mellitus.



CONCLUSION OF LAW

The Veteran has nephropathy manifested by proteinuria that is the proximate result of his service-connected diabetes mellitus.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.102 (2012); 38 C.F.R. § 3.310 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

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) (2012). 

Service connection may be granted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc).

The Veteran has claimed service connection for disability manifested by orthostatic proteinuria.  At a March 2011 VA diabetes examination, the Veteran was shown to have been diagnosed with diabetes mellitus, type I-he was ultimately diagnosed with type II diabetes and service connected for diabetes mellitus, type II, in an April 2013 rating decision.  At the March 2011 VA examination, however, it was noted that the Veteran had "nephropathy with proteinuria."  The examiner noted that the onset of the complication was in relation to the onset of diabetes.  It was noted that the Veteran had a history of proteinuria which was well documented in his medical records from private institutions.  The examiner noted that the Veteran "demonstrated a worsening of his kidney disease over time and [he] opined that this [was] diabetic nephropathy."

Additionally, the Veteran underwent a VA diabetes examination in May 2012, during which the examiner noted that the Veteran had "diabetic nephropathy or renal dysfunction caused by [diabetes mellitus]."  That same finding was noted in the most recent VA diabetes examination in March 2013.

Given these facts, the Board finds (a) that the Veteran's proteinuria is a manifestation of nephropathy, and (b) that the nephropathy is the result of his service-connected diabetes mellitus.  

The Board notes that there is no other evidence in the record which accounts for the possibility of elevated protein levels in the Veteran's urine.  In fact, the March 2011 examiner specifically noted that the Veteran's proteinuria was the result of his diabetic nephropathy.  Moreover, all of the three noted examiners agree that the Veteran's diabetic nephropathy has been caused by his diabetes.  The March 2011 examiner specifically noted that the onset of his elevated protein levels and nephropathy corresponded to the onset of his diabetes.  The other two examiners concluded that the Veteran's nephropathy was the result of his diabetes.  

Again, the Board notes that there is no evidence of record that refutes the above findings.  No other evidence relates the Veteran's proteinuria to any other disease process other than the nephropathy, or has related his nephropathy to some other disease process other than the service-connected diabetes mellitus.  

In light of the above, the Board finds that service connection for diabetic nephropathy manifested by proteinuria is warranted.  38 C.F.R. § 3.310.  


ORDER

Service connection for diabetic nephropathy manifested by proteinuria is granted.


REMAND

The Veteran underwent a VA examination for his arthritis claim in March 2013, at which time the only identified pain was in his right shoulder and right wrist; such was identified as osteoarthritis of those two joints.  The examiner concluded that those arthritic conditions were not related to military service, as well as noting that the Veteran did not have a generalized/systemic arthritic condition.

After review of the claims file, however, the Board notes that upper gastrointestinal contrast (with barium) and radiographic chest studies from May 1997 demonstrated degenerative changes in the Veteran's thoracic and lumbar spines.  In light of the thoracic and lumbar spine findings, the Board finds that a new VA examination is necessary in order to better assess the Veteran's arthritis claim, especially with regard to joints other that the right shoulder and right wrist.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise).

Ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA treatment records from the Hot Springs VA Medical Center, Scottsbluff CBOC, or any other VA medical facility where the Veteran may have sought treatment or evaluation of arthritis since March 2012 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his claimed arthritic conditions, which is not already of record.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Thereafter, schedule the Veteran for a VA examination in order to determine the etiology of any arthritic condition found in any joint, including the right shoulder, right wrist, and thoracic and lumbar spine.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary, including x-rays, should be conducted and the result reported in detail.

After review of the claims file and examination of the Veteran, the examiner should identify each arthritic joint found, including any arthritis of the right shoulder, right wrist, and thoracic and lumbar spine.  

For each identified arthritic joint found, including the right shoulder, right wrist, and thoracic and lumbar spine, the examiner should opine as to whether such is more likely, less likely, or at least as likely as not (50 percent or greater probability) related to events coincident with military service, to include loading and unloading ammunition and any fall/incident related to a helicopter or otherwise.  

The examiner should specifically discuss the Veteran's statements with regard to continuity of symptomatology.  The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptomatology since service should be set forth in detail.  

The examiner should additionally discuss the March 2013 examiner's findings, particularly the conclusions reached with regard to the findings of generalized/systemic arthritis in light of the other notations of arthritis in the claims file.

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

4.  Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for arthritis.  If a benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_______________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs