Citation Nr: 1330908 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-36 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a kidney disorder, to include as secondary to service-connected chronic prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from March 1951 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, denying the claim currently on appeal. The Board denied this appeal in a decision of April 2011. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). The Secretary of VA and the Veteran, through his attorney, filed a joint motion to vacate the Board's decision in September 2012 and remanded the claim back to the Board. Subsequently, the Board remanded this matter back to the Agency of Original Jurisdiction (AOJ) for further evidentiary development in May 2013. 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). FINDINGS OF FACT 1. The Veteran's chronic renal insufficiency did not manifest during, or as a result of, active military service. 2. The Veteran's service-connected prostatitis neither caused, nor permanently aggravated, his chronic renal insufficiency. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a kidney disorder, to include as secondary to service-connected prostatitis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter sent to the Veteran in December 2007 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment and personnel records. Also, the Veteran received VA medical examinations in June 2008 and September 2010, and additional medical opinions were provided in February 2011 and June 2013. VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Records from as recently as June 2013 have been associated with the record. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Additionally, the Board finds there has been substantial compliance with its May 2013 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained updated VA treatment records and obtained an addendum to the previous examination report in which the requested opinions were provided. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as cardiovascular-renal disease, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted 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). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2011); see also Grivois v. Brown, 6 Vet. App. 136 (1994). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Analysis The Veteran contends that he is entitled to service connection for a kidney disorder. Specifically, the Veteran has alleged that he experienced symptomatology associated with this condition during military service and that it was either caused by, or permanently aggravated by, his service-connected prostatitis. However, as outlined below, the preponderance of the evidence of record is against the Veteran's contentions. As such, service connection is not warranted. A review of the Veteran's service treatment records reveals complaints of nocturia and urinary frequency during the day. See service treatment records dated in May 1952 and January 1953. A January 1953 record also shows that the Veteran complained of weak kidneys and that he was required to go to the latrine approximately 8 times per day. X-rays of the abdomen taken in May 1952 revealed that the kidneys were normal in size, shape and position. The Veteran's separation examination dated in March 1953 documents that the Veteran had occasional polyuria since August 1951. The Veteran's service treatment records did not provide a diagnosis of any kidney disorder during military service or relate the Veteran's urinary frequency or nocturia to problems with the kidneys. In fact, soon after military service, a July 1953 private treatment record diagnosed the Veteran with chronic prostatitis. Service connection is currently in effect for this condition. Subsequent records reveal that the Veteran's renal insufficiency began in 2003 - approximately 50 years after military service. See March 2006 VA treatment record. According to a January 2008 VA treatment record signed by the Veteran's primary care physician, he was suffering from chronic kidney disease that was believed to likely be due to hypertension/diabetes mellitus. The Veteran was afforded a VA examination in June 2008 to determine the current level of severity of his service-connected chronic prostatitis. It was noted that medical records revealed that he also suffered from chronic renal failure dating back to 2003. His creatinine had been stable over the past two years, and it was noted that his nephrologist felt he had stage III kidney disease. The etiology of this condition was noted to have been indeterminate for several years, despite close monitoring by nephrology. While the Veteran was diabetic, he was not felt to have diabetic nephropathy. He did have monoclonal gammopathy of undetermined significance which was being followed. The Veteran was afforded another VA examination in September 2010. It was noted that he was currently 20 percent service-connected for prostatitis, having been service-connected for this condition since 1953. Upon reviewing the Veteran's claims file, the examiner noted that the Veteran had frequency of urination and intermittent discharge in service. A thorough evaluation indicated his symptoms were related to prostatitis and there was no known kidney disease noted at the time. Post-service records revealed normal creatinine and BUN a recently as 1997. In 2005, however, he was noted to have a mildly elevated creatinine and was referred to nephrology. After a thorough evaluation, he was noted to have a monoclonal gammopathy of unknown significance as subsequently determined by the Hematology/Oncology Clinic. It was also noted that the Veteran had suffered from poorly controlled hypertension for a number of years and had developed diabetes mellitus. There was no evidence of frank diabetic nephropathy, but it was felt by nephrology that all of these conditions were most likely contributing to the Veteran's mild renal insufficiency. It was noted that chronic prostatitis was not an issue with regard to his renal insufficiency. The September 2010 VA examiner prepared an additional opinion in February 2011. It was noted that the medical and administrative records were reviewed in conjunction with this opinion. Upon review of the records and the previous examination report, the examiner noted that the Veteran's frequency of urination and intermittent discharge were felt by his caregivers in the service, as well as by early VA examiners, to be related to chronic prostatitis. There was no evidence of any kidney disease noted at the time by testing nor was there any evidence of kidney disease as late as 1997. Serum creatinine and BUN were found to be normal at this time. While the Veteran related his frequency of urination in service to weak kidneys, frequency of urination is a common manifestation of chronic prostatitis and does not imply kidney disease. The inflamed prostate causing irritation of the prostatic urethra or urine channel is the cause for the frequent urination of small amounts of urine. It was not until 2005 that the Veteran was noted to have mild renal insufficiency - approximately 52 years after separation from service. He was seen by nephrology, whose evaluation concluded that his renal insufficiency was on the basis of monoclonal gammopathy of unknown significance, low blood pressures and a past history of hypertension that was poorly controlled. Furthermore, the examiner concluded that chronic prostatitis had no direct impact on the development of chronic renal insufficiency. However, poorly controlled hypertension and monoclonal gammopathy could have permanent effects on renal function. Therefore, it was less likely than not that the Veteran's chronic renal disease had been caused by or aggravated by his service-connected prostatitis. Also, his chronic renal failure was not caused by active military service or aggravated by active military service. An additional addendum opinion was obtained in June 2013. The examiner noted that the Veteran's records and claims file were reviewed in conjunction with the examination, although the Veteran himself was not present. The examiner's conclusion remained the same - that the Veteran's kidney disease was less likely as not incurred in or caused by military service. The examiner noted that there was no evidence of kidney disease until 2005. Previous records from 1997 revealed serum creatinine and BUN to be normal. The Veteran's in-service polyuria was more likely the result of frequency - a not uncommon manifestation of his prostatitis due to the irritation of the inflamed prostatic urinary channel. The examiner further opined that the Veteran's kidney disease was less likely as not due to his service-connected prostatitis. The examiner explained that chronic prostatitis does not cause or aggravate chronic kidney disease. It is most often a localized infection of the prostate gland that is responsive to antibiotics. The examiner also discussed the conflicting medical evidence of record, noting that a general physician did opine in 2008 that the etiology of the Veteran's chronic renal disease was unknown. The Veteran's nephrologist at the Renal Clinic felt that his low blood pressure could be a contributing factor. A monoclonal gammopathy was just diagnosed and a referral was made to Hematology/Oncology for further evaluation. In 2010 (and currently), nephrology has felt (and it is more likely than not) that the chronic kidney disease is the result of a combination of monoclonal gammopathy, low blood pressure and the past history of poorly controlled hypertension - all of which can cause renal insufficiency. Finally, the record contains numerous records of treatment through VA Medical Centers (VAMC), with records from as recently as June 2013 associated with the Veteran's file. These records reflect consistent treatment for kidney problems. As noted in an April 2013 record, the Veteran's history reflects a varying degree of renal function. However, none of these records suggest any potential relationship to military service, or, the Veteran's service-connected prostatitis. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a kidney disorder, to include as secondary to his service-connected prostatitis. There is no record of a kidney disorder during active military service. Furthermore, this condition was not diagnosed for approximately one-half of a century after separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the absence of any treatment or diagnosis of a kidney disorder for such an extensive period of times tends to suggest that this condition has not existed since military service. In addition, the record contains competent medical evidence indicating that the Veteran's chronic renal failure is not related to active service and that it is not secondary to his service-connected prostatitis. The June 2008 VA examiner concluded that there was no evidence of chronic renal failure of record until 2003. The September 2010 VA examiner also opined that it was less likely than not that this condition manifested during service, as there was no known kidney disease in service and because testing performed some 44 years after separation from service revealed normal creatinine and BUN. It was not until a number of years later that the record reflects what the examiner referred to as "mildly" elevated creatinine. The examiner again reviewed the evidence of record in February 2011 and June 2013, but again came to the same conclusions. The examiner explained that in-service symptoms such as frequency of urination is a common manifestation for chronic prostatitis. Also, there was no evidence of any kidney disease during service or any kidney disease as late as 1997, and as such, it was less likely than not that this condition manifested during, or as a result of, active military service. The February 2011 VA examiner also concluded that chronic prostatitis had no direct impact on the development of chronic renal insufficiency, and as such, it was less likely than not that the Veteran's chronic renal disease had been caused by or aggravated by his service-connected prostatitis. The examiner also added in June 2013 that prostatitis was most often a localized infection of the prostate gland that was responsive to antibiotics and that it did not cause or aggravate kidney disease. The record contains no competent evidence suggesting any potential relationship. The Board recognizes that there is conflicting evidence regarding the etiology of the Veteran's kidney disorder. According to a June 2008 VA examiner, the etiology of the Veteran's chronic kidney disease had been indeterminate for several years. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). However, upon review of the entire record in June 2013, the VA examiner explained that while this opinion was offered in 2008, further testing and referral led to the conclusion in 2010 that the Veteran's chronic kidney disease was the result of a combination of monoclonal gammopathy, low blood pressure and a past history of hypertension. The examiner noted that the evidence reflects that this is still the opinion held by Nephrology. Therefore, it would appear that the 2008 VA examiner did not have all of the facts, as subsequent testing revealed information that has since led Nephrology to link the Veteran's chronic kidney disease to other diagnoses. As this opinion was provided with the benefit of additional evidence and testing, the Board finds it to be more probative. Finally, there is simply no competent evidence of record relating this condition to military service or prostatitis. The Board recognizes that the Veteran believes his kidney condition manifested during service, or as a result of his service-connected prostatitis. However, the record contains no evidence to suggest that the Veteran has the requisite training or experience to offer a medical opinion as complex as the origin of a kidney disorder. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). While the Veteran is competent to testify to the symptoms he experienced during military service, he is not competent to link this to a current disability diagnosed some 50 years after separation from active duty. Furthermore, the medical evidence of record does not support the Veteran's contentions. There was no kidney disorder diagnosed during military service and it was not diagnosed for another five decades. Furthermore, the VA examiner of June 2013 concluded that this disability was less likely than not due to military service, as serum creatinine and BUN levels were deemed to be normal in 1997 - decades after service. Also, the examiner explained that prostatitis does not cause or aggravate chronic kidney disease, as it is most often a localized infection of the prostate gland that responds to antibiotics. In summary, there is no evidence of a chronic kidney disorder during active military service. Likewise, there is no evidence of chronic symptomatology following service or a diagnosis of this disability within one year of separation from active duty. The competent medical evidence of record also demonstrates that the Veteran's kidney disease did not manifest during, or as a result of, active military service. Finally, the competent medical evidence of record demonstrates that this condition was neither caused by nor aggravated by the Veteran's service connected prostatitis. As such, there is no basis for a grant of service connection for a kidney disorder. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a kidney disorder, to include as secondary to prostatitis, must be denied. ORDER The claim of entitlement to service connection for a kidney disorder, to include as secondary to service-connected prostatitis, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs