Citation Nr: 1324989 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-19 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder ("PTSD"). 2. Entitlement to service connection for kidney disease, claimed as the result of depleted uranium exposure. 3. Entitlement to service connection for hypertension, claimed as secondary to kidney disease. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to April 1996. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a March 2009 decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida, which continued a previous 10 percent rating for the Veteran's service-connected PTSD and denied service connection for kidney disease and hypertension. Thereafter, in a March 2010 rating decision, the RO increased the disability rating for PTSD to 50 percent, effective October 27, 2008. Despite the assignment of an increased disability evaluation for this disorder, the issue remains in appellate status because the Veteran has continued to express disagreement with the assigned ratings. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a rating decision issued after a notice of disagreement which grants less than the maximum rating available does not "abrogate the pending appeal"). In October 2012, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered these claims. In March 2013, the Board remanded the claims for additional development, specifically to attempt to obtain additional treatment records from the Tampa VA Medical Center ("VAMC") and to afford the Veteran an examination for kidney disease and hypertension. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The requested development having occurred, the Board finds there has been substantial compliance with the terms of the remand. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. The issue of entitlement to a rating in excess of 50 percent for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran's kidney disease was not diagnosed during service, was not diagnosed to a compensable degree within one year of separation from service, is not etiologically-related to any event, injury or disease of service, to include depleted uranium exposure. 2. The probative and competent evidence of record demonstrates that the Veteran's hypertension was not diagnosed during service, was not diagnosed to a compensable degree within one year of separation from service, is not etiologically-related to any event, injury or disease of service, and is not secondary to any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for kidney disease have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") in 2008. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. By means of a pre-adjudication letter dated November 2008, the Veteran was informed of the types of evidence needed in order to substantiate his service connection claims, the division of responsibility between himself and VA for obtaining the required evidence, and was asked to provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. The Board notes that, although the Veteran has claimed entitlement to service connection for hypertension as secondary to kidney disease, as he is not service-connected for kidney disease, secondary service connection is not applicable. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service treatment records, post-service treatment records and VA compensation and pension examination reports dated May 2013. The claims folder also contains the Veteran's statements and testimony in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. A review of the May 2013 examination reports demonstrate that the examiner reviewed the complete claims folder, interviewed the Veteran regarding his reported history of symptomatology and treatment, performed a comprehensive evaluation, including a review of diagnostic test results, and provided reasons and bases for his opinions that it is less likely than not that either of the Veteran's claimed disorders are related to any incident of service. Accordingly, the Board finds that the VA examination reports are adequate upon which to base decisions in this case. Moreover, all procedures to obtain records pertaining to the Veteran's claim have been correctly followed. In this respect, as noted above, VA made an attempt to obtain the Veteran's Social Security Administration ("SSA") records. The Court has repeatedly held that when VA is on notice that there are relevant SSA records, it must obtain and consider them. See Baker v. West, 11 Vet. App. 163,169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996). Here, in an August 2009 letter to the Veteran, the RO asked whether he was in receipt of SSA disability benefits. In a concurrent query with SSA, the RO attempted to obtain the Veteran's treatment records. In a September 2009 response, SSA informed the RO that no data had been found. Further, as noted the appellant was afforded a Board hearing in October 2012. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing generally was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran's submissions and statements, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claims because the submissions and statements focus on the evidence and elements necessary to substantiate his claims. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claims has been consistent with the provisions of the VCAA. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirements has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. See Overton v. Nicholson, 20 Vet. App. 427 (2006). Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including hypertension and nephritis, when manifested to a compensable degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service- connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability. Id.; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran claims that his kidney disease is the result of depleted uranium exposure, which occurred when he suffered injuries after his vehicle was hit by a friendly fire projectile from an M1-A1 tank during active duty service in 1991 during the Gulf War. He avers that his hypertension is the result of his kidney disease. Department of Defense records show that the U.S. military uses tank armor and some bullets made with depleted uranium to penetrate enemy armored vehicles, and began using depleted uranium on a large scale during the 1990-1991 Gulf War. VA and the Department of Defense established the Depleted Uranium Follow-Up Program at the Baltimore VA Medical Center ("VAMC") to screen and monitor veterans for health problems associated with exposure to depleted uranium. On July 6, 2001, the Secretary, under the relevant statutory authorities, determined, at that time, that there was no basis for establishing a presumption of service connection for any illness suffered by Gulf War veterans based on exposure to depleted uranium, sarin, pyridostigmine bromide, and certain vaccines. See Notice, 66 Fed. Reg. 35,702-10 (July 6, 2000) and Notice, 66 Fed. Reg. 58,784-85 (Nov. 23, 2001). The Secretary has since determined that a presumption of service connection based on exposure to depleted uranium used in the Persian Gulf during the Persian Gulf War is not warranted for any of the diseases, illnesses, or health effects discussed in a July 30, 2008 report of the Institute of Medicine ("IOM") of the National Academy of Sciences titled Gulf War and Health: Updated Literature Review of Depleted Uranium. The IOM also concluded that there was limited or suggestive evidence of no association between uranium and clinically-significant renal dysfunction. See Notice, 75 Fed. Reg. 10867-10871 (2010). Review of the Veteran's service treatment records show that, in February 1991, he was admitted to the hospital after sustaining multiple injuries when the vehicle in which he was riding was hit by a projectile. Subsequent treatment reports, dated July 1994, from the Baltimore VAMC show that the Veteran was a participant in the Depleted Uranium Follow-Up Program with reports of depleted uranium shrapnel in his head, back, hip and elbow. These records, however, show that head and thoracic CT scans, bone length radiographs, and a kidney ultrasound revealed normal findings with no evidence that the Veteran had any opaque foreign bodies within the soft tissues or bony structures. A subsequent July 1994 letter from the Baltimore VAMC was sent to the Veteran notifying him of the test results and advising him that his results were "generally reassuring" concerning the long term consequences of injury with depleted uranium shrapnel. The service treatment records do not reveal any evidence of a diagnosis of hypertension and the Veteran does not allege otherwise. Post-service VAMC treatment records show that in September 2004, the Veteran underwent a full body scan based on a reported history of residual shell fragment wounds. The results shows no evidence of abnormal increased or decreased uptake overly suspicious for metastatic disease. In May 2008, the Veteran was admitted to the emergency department with a systolic blood pressure reading of over 200 and a creatinine reading of over 3.0. Diagnostic tests showed a decrease in kidney size bilaterally, which was noted as indicative that renal insufficiency was likely chronic. The clinician also noted that it was likely that the Veteran's renal failure was "the product of chronic, uncontrolled [hypertension]." The discharge diagnoses were hypertension and chronic renal insufficiency. A July 2008 VAMC MRI of the Veteran's abdomen revealed findings of a septated cyst within the upper pole of the right kidney. In November 2008, the Veteran was seen for follow-up treatment of his kidney disease. The impression was Stage 1 chronic kidney disease, noted as most likely secondary to hypertensive nephrosclerosis (defined as the most common kind of arteriolar nephrosclerosis (hardening of the kidney) due to hypertension of the renal arterioles). DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1262 (31st ed. 2007). It was also noted that his hypertension was under better control. In May 2013, the Veteran was afforded VA examinations for his hypertension and kidney disease. During the kidney evaluation, the examiner diagnosed the Veteran with Stage 4 chronic renal failure, and noted that he was first diagnosed with acute renal failure in 2008. It was also noted that he was taking continuous medicines for the condition. A June 2012 renal biopsy showed a diagnosis of focal, global glomerulosclerosis (hardening of the glomerulus in the kidney). The examiner opined that it was less likely than not that the Veteran's kidney disease was incurred in, or caused by service, as the service treatment records were silent for kidney problems and the onset of the Veteran's renal failure was in 2008 with a cause unknown. He further opined that renal failure was not related to depleted uranium exposure 17 years earlier in 1991. During the hypertension examination, the examiner noted that the Veteran was first diagnosed with hypertension in 2008; readings from May 2008 were 190/116 and 191/128. During the physical examination, the Veteran's blood pressure readings were 148/104, 150/106 and 147/86. The VA examiner opined that it was less likely than not that his hypertension was a result of service, as his service treatment records were negative for hypertension and his first medically-documented hypertension was not until March 2008. He further opined that the disease was less likely than not a result of his kidney disease, and he noted that hypertension is not due to retained, depleted uranium. Having reviewed the complete record, the Board finds that the competent and credible evidence is against the Veteran's claim of entitlement to service connection for kidney disease, to include as secondary to depleted uranium exposure, and his claim of service connection for hypertension. In this regard, the Board has also considered whether service connection is warranted for either of the disorders on a direct or presumptive basis. With regard to granting service connection on a direct basis, as noted above, although the Veteran currently has hypertension and Stage 4 renal disease, the probative medical evidence of record demonstrates that neither of these conditions manifested during service and the VA examiner found it less likely than not that either condition was related to any incident of service, to include the Veteran's possible depleted uranium exposure. Moreover, the examiner noted that both conditions were not diagnosed until 2008, approximately 12 years after active duty service. (The Veteran does not argue continuous symptoms since service or within the presumptive period.) As such, service connection for either condition on a presumptive basis is not for application. Further, as discussed above, because the Veteran is not service-connected for kidney disease, hypertension as secondary to kidney disease is not applicable. In addition to the medical evidence, the Board has also considered the Veteran's personal testimony and statements in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, although the Veteran is competent to report certain symptoms associated with high blood pressure, there is no evidence that he has medical knowledge or training that would permit him to diagnose a complex medical disorder, such as hypertension or kidney disease, nor attribute symptoms of either disease to depleted uranium exposure. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, although the Board acknowledges the Veteran's belief as to the etiology of his disorders, his statements in this regard are not deemed competent. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for kidney disease and hypertension on a direct, presumptive and secondary basis. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi; Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for kidney disease, claimed as the result of depleted uranium exposure, is denied. Entitlement to service connection for hypertension, to include as secondary to kidney disease, is denied. REMAND During his October 2012 hearing before the Board, the Veteran averred that the symptoms of his service-connected PTSD are of greater severity than the current disability rating contemplates. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of this claim. Under the VCAA, VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Moreover, while the VCAA duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted (see VAOPGCPREC 11-95), the Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, and as the last PTSD examination was conducted in 2009, the Board finds that remand is necessary to afford the Veteran a new examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. Any and all tests and evaluations deemed necessary should be performed and the clinical findings must be reported in detail. The examiner should elicit a complete history of the Veteran's symptomatology and problems, and note that, in addition to the examination findings, the Veteran's self-reported history has been taken into consideration in the examination report. The examiner is also asked to discuss whether and how the Veteran's disability affects his activities of daily living and ability to work. To the extent possible, the examiner should separate symptoms due to PTSD from those due to any other psychiatric disorder diagnosed. If this cannot be done, the examiner should so indicate. The examiner is also asked to assign a Global Assessment Functioning ("GAF") score to the Veteran. If possible, the examiner should assign a GAF score attributable only to the Veteran's PTSD. The GAF score should be interpreted, as it pertains to social and industrial adaptability. Any and all opinions must be accompanied by a complete rationale. 2. Thereafter, the claims folder should be reviewed to ensure that the foregoing requested development has been completed. The claim should then be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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. 2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs