Citation Nr: 1326774 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-16 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for renal failure. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1970. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2010, the Veteran presented testimony at a hearing conducted at the RO by the undersigned Veterans Law Judge. A hearing transcript (transcript) which includes the testimony provided at that hearing has been associated with the Veteran's claims folder. The Board remanded this claim in January and November 2011 and in October 2012 so that certain due process considerations could be addressed, as well as so additional development of the evidence could be conducted. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). In pertinent part, the purpose of the most recent October 2012 remand was to achieve further development of the claim, namely to obtain an additional records from VA and the Social Security Administration, and to obtain an additional medical opinion via addendum report. To the extent possible, this ordered development has been completed. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may therefore proceed with appellate review. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall. The Veteran, as discussed in the course of his November 2010 hearing conducted by the undersigned, seemed to imply that he wished to raise a claim of entitlement to compensation under 38 U.S.C.A. § 1151 as to his claimed renal failure disorder. He related that this may have been due to his being prescribed Lithium by VA medical personnel. While the Veteran has been informed of proper notice regarding this legal theory by the Appeals Management Center (AMC) in January 2013, this claim has yet to be addressed on this basis by the Agency of Original Jurisdiction (AOJ). As such it is referred to the AOJ for appropriate action. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran's renal failure is related to active duty. CONCLUSION OF LAW The criteria for service connection for renal failure have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of 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 extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in October 2006. The duty to assist the Veteran in the development of the claim has also been met. VA obtained service treatment records, and post-service VA and private medical treatment records. The Social Security Administration (SSA) was contacted in an effort to obtain pertinent records; they responded, however, in January 2013 that the Veteran's medical records had been destroyed. The Veteran was afforded a VA examination in February 2011, followed by the issuance of a January 2013 addendum opinion. The Board finds that the VA examination (and subsequently-provided opinion) is adequate, as it was predicated on a review of the claims file and all pertinent evidence of record. The examination report/opinion also is shown to have provided adequate medical information/opinions needed to adjudicate the affected claim. 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). Contentions As part of a VA Form 21-526, received in October 2005, the Veteran sought service connection for renal failure. He claimed that his condition began while he was in Vietnam. The Veteran later claimed that this disorder was due to his being exposed to Agent Orange while serving in Vietnam. See March 2007 VA Form 21-4142. As noted above, the Veteran appears to be also claiming that his renal failure is attributable to his being prescribed Lithium by VA medical personnel. As this aspect of the claim has been referred to the AOJ for appropriate consideration, this instant appeal will not address this precise legal theory. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Renal failure is not listed among those diseases. There is a statutory presumption of service connection for certain diseases associated with exposure to herbicides for veterans who "served in the Republic of Vietnam." 38 U.S.C. § 1116. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(6)(iii). Renal failure is not listed among those diseases. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases if the disease became manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). As mentioned, renal failure is not listed among these diseases. Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Factual Background The service treatment records show that examinations of the Veteran conducted in October 1967 (enlistment), May 1968 ("OCS"), and September 1970 (separation) all were devoid of any findings relating to the presence of a renal-related disease. The other service treatment records likewise make no mention of such findings. Post service medical records associated with the Veteran's claims file include an October 1993 VA echogram report showing that bilateral renal cysts were present. The supplied diagnosis, after renal and pelvic ultrasound examination, was no significant or minor abnormality. A May 2000 VA mental health outpatient note parenthetically observes that the Veteran was being evaluated for renal insufficiency. Private medical records dated from 2003 to 2007 include numerous notations to a diagnosis of renal insufficiency. A December 2003 VA psychiatric outpatient note shows that the Veteran expressed being anxious about his deteriorating renal function. A February 2007 VA psychiatric outpatient medical record shows that the Veteran had chronic renal insufficiency. A diagnosis pertaining to this complaint was not supplied. An April 2007 private medical report includes a diagnosis of Stage IV/V chronic kidney disease. An August 2008 VA psychiatric outpatient treatment note includes a notation to chronic renal failure as part of the Veteran's medical history. The report of a February 2011 VA examination shows that the examiner, a nurse practitioner, commented that she had reviewed the Veteran's claims folder. She noted that the onset of the Veteran's renal failure occurred in 2003. After reporting a detailed description of the Veteran's medical history, pertaining to his chronic renal failure, and after examining the Veteran, the examiner provided a diagnosis of chronic renal failure. The examiner opined that the chronic renal failure was "not caused by or a result of an event during his service," and that it was also "not caused by or a result of his exposure to Agent Orange." The examiner supplied a rationale for the supplied opinions. Later, in June 2013, an addendum opinion was supplied by the VA nurse practitioner who examined the Veteran in February 2011. She again opined that the Veteran's renal failure was neither due to or caused by an event or incident of active service, nor due to exposure to Agent Orange in service. She noted that the Veteran was not treated in service for a renal disorder. She mentioned that there was no credible scientific evidence to support a finding that Agent Orange exposure causes renal failure. She further mentioned that no forms of kidney disease are recognized as herbicide related disabilities. The nurse practitioner concluded by finding that it was less likely as not that the Veteran's chronic renal failure was due to an event occurring during the Veteran's service or was related to in-service exposure to Agent Orange. Analysis The only medical opinion to address causation is that offered by the February 2011 (with June 2013 addendum) VA examiner who concluded that the Veteran's current renal-related disorder was not due to service (to include as a result of Agent Orange) and offered a supporting rationale. To the extent the Veteran asserts his current renal failure problems are due to service, the Board finds that given the particular facts of this case, his condition could have multiple causes and is not a disability for which a lay opinion is competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As for the Veteran's assertion that his renal failure is the result of exposure to Agent Orange while he was in Vietnam, as noted, none of his diagnosed renal-related disorders are included on the list of presumptive diseases associated with exposure to herbicides. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Thus, the only competent, credible evidence of record is the February 2011 VA opinion (with June 2013 addendum opinion) which weighs against the claim. There is no competent, credible evidence of continuity of symptomatology since service or evidence that service connection can be awarded on a presumptive basis. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for renal failure is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs