Citation Nr: 1331789	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  10-33 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to service connection for rheumatoid arthritis.

2.  Entitlement to service connection for a kidney disorder.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to November 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In September 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims folder.

This case was previously before the Board in October 2012 and April 2013 when it was remanded for additional development.

In September 2013, subsequent to the most recent Supplemental Statement of the Case, a Report of Confidential Social Security Benefit Information regarding the Veteran was received by the Board.  This document was not accompanied by a waiver.  However, this information is duplicative of evidence of record prior to the most recent Supplemental Statement of the Case, specifically that the Veteran had been awarded Social Security Administration benefits.  Thus, a remand is not necessary.  See 38 C.F.R. §§ 19.31, 19.37, 20.800, 20.1304(c) (2013).

The issue of entitlement to service connection for a kidney disorder 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.






FINDING OF FACT

There has been no demonstration by competent medical, nor competent lay, evidence of record, that the Veteran has rheumatoid arthritis causally related to active service.


CONCLUSION OF LAW

Rheumatoid arthritis was not incurred in, or aggravated by, active service and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in October 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter.  The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence.  The letter also informed the Veteran that a disability rating and effective date would be assigned, in the event of award of the benefit sought.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment 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).  The RO has obtained VA treatment records and all adequately identified private treatment records for which the Veteran has provided authorization for VA to obtain.  The Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  

An attempt was made to obtain records of the Veteran's claim for Social Security Administration (SSA) benefits.  VA received notification from SSA that the records had been destroyed.  The Veteran was notified of the unavailability of the records in July 2013.

The Veteran was treated for a heart attack and Massachusetts General Hospital, Boston Medical Center, and Anna Jacques Hospital (AJH).  At the hearing before the undersigned the Veteran's representative reported that the Veteran "also has coronary artery disease.  So, it's a bunch of stuff related to Agent Orange.  The kidney probably is too."  The Veteran reported at his hearing before the undersigned that "[t]hey rushed me to Mass General, put me in an induced coma for three days.  They had me packed in ice.  They didn't know what the results were when the brought me out of the coma."  As these records regard the Veteran's treatment for a heart attack, the Board finds it unnecessary to obtain the records as they are not relevant to the Veteran's claim for rheumatoid arthritis.  

In April 2013 the RO requested that the Veteran provide authorization to obtain treatment records from Drs. D.E. and T.A., and Newburyport Medical Associates.  The Veteran did not provide authorization to obtain these records.  

The Board notes that the Veteran has not been afforded a VA examination in regarding to his claim.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  A Veteran is not entitled to a VA examination based solely on his own conclusory statements indicating that there is a relationship between an in-service illness or injury and a present disability.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).  The record must contain some other factual basis supporting his statements.  See Waters, 601 F.3d at 1278; see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). 

In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.

The Federal Circuit also held that there must be evidence "establishing" that an event, injury, or disease occurred in service.  See Waters, supra.

Given the above standard, the Board finds that a remand for a VA examination is not required.  Service treatment records are negative for the claimed rheumatoid arthritis and the post-service record is negative for any evidence of rheumatoid arthritis for many years after his separation from active duty.  Although the Veteran was exposed to herbicides in service, contends that he was hit with a chain in the back during service, and indicates many years after separation from service that his disability began in 1969, the Board finds the record as to the claim for rheumatoid arthritis does not establish the occurrence of a disease, injury or event in service.  The only evidence that the Veteran's claimed rheumatoid arthritis is related to his military service and/or his exposure to herbicides is his own conclusory generalized lay statements, which are not supported by any medical evidence.  In addition, when asked at the hearing before the undersigned "[h]as any doctor told you that your rheumatoid arthritis or your kidney problems might be related to service?" the Veteran responded "[t]hey couldn't give me that diagnosis."  Accordingly, the Board finds that a VA medical examination or opinion is not necessary for the issue decided.  See 38 U.S.C.A. § 5103A (d); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service when the Board does not find his statements credible); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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).

II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, a showing of continuous symptoms should still be a factor for consideration of whether a causal relationship exists between a Veteran's current disability and any in-service incident.  

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange.  38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. §§ 3.307, 3.309. 

Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease.  38 U.S.C.A. § 1116(b)(1). 

If a Veteran was exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 

VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See Notice, 72 Fed. Reg. 32,395 (2007). 

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is 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, 492 F.3d at 1376-77. 

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).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the 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) (West 2002).  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).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

The Veteran seeks entitlement to service connection for rheumatoid arthritis.  Service treatment records do not reveal any complaint, diagnosis, or treatment for any arthritis or rheumatoid arthritis.

Private and VA treatment records reveal that the Veteran is diagnosed with and receiving treatment for rheumatoid arthritis.  However, there is no indication in the treatment records that the Veteran's rheumatoid arthritis may be related to the Veteran's active service.  

At the hearing before the undersigned Veterans Law Judge when asked if any doctor has told him that his rheumatoid arthritis might be related to service the Veteran responded that they couldn't give that diagnosis.

The Board noted in October 2012 that the Veteran's service personnel records reveal that the Veteran served aboard the USS Valley Forge in 1967, 1968, and 1969.  It was further noted that the USS Valley Forge has been classified as a ship that operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels went ashore regularly with supplies or personnel during the period from September 1964 to September 1969.

The Board found that based upon the Veteran's testimony and the characterization of the Veteran's ship, the evidence is at least in equipoise that the Veteran was exposed to herbicides while serving in the coastal waters of Vietnam.

Entitlement to service connection for rheumatoid arthritis is not warranted.  Initially, the Board notes that rheumatoid arthritis is not a disability for which service connection is afforded on a presumptive basis due to exposure to herbicides.  Service treatment records do not reveal any complaint, diagnosis, or treatment for any rheumatoid arthritis.  Post service treatment records reveal a diagnosis of rheumatoid arthritis but do not reveal any indication that the condition may be related to the Veteran's active service including exposure to herbicides.  In addition, at the hearing before the undersigned the Veteran indicated that his physician has not rendered an opinion associating his condition with his active service.  As the preponderance of the evidence is against the Veteran's claim, entitlement to service connection for rheumatoid arthritis is denied.


ORDER

Service connection for rheumatoid arthritis is denied.


REMAND

The Veteran seeks entitlement to service connection for a kidney disorder.  Service treatment records do not reveal any complaint, diagnosis, or treatment for any kidney disorder.

The Veteran has reported that he had cysts on his right kidney and that he was exposed to herbicides in service when Marines and helicopters that were exposed to Agent Orange returned to the ship.  The Veteran also reported that while he was in service he was exposed daily to asbestos that was wrapped around all pipes.

Post service treatment records do not reveal any diagnosis or treatment for any kidney disorder.  However, a May 2010 VA note indicates "Diabetes Type II-his blood glucose and overall control are excellent; however he does have an elevated microalbumin/creatinine ratio suggesting that he has some kidney disease from his diabetes."

At the hearing before the undersigned Veterans Law Judge when asked if any doctor has told him that his kidney problems might be related to service the Veteran responded that they couldn't give that diagnosis.

The Board notes that the Veteran is in receipt of service connected benefits for type II diabetes mellitus.

The Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  As such, the Board finds that it must consider entitlement to service connection for a kidney disorder, to include as secondary to type II diabetes mellitus.

As noted above, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

Here as it is unclear whether the Veteran has a kidney disorder and as it is unclear whether the Veteran has a kidney disorder related to his active service or his service-connected type II diabetes mellitus, the Board finds it necessary to afford the Veteran a VA medical examination.

The Veteran has not been provided with adequate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for the claims asserted based on secondary service connection under 38 C.F.R. § 3.310.  Proper notice should be provided.

Since the claims file is being returned it should be updated to include VA treatment records compiled since May 2013.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran appropriate notice pursuant to the VCAA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for the claims asserted based on secondary service connection under 38 C.F.R. § 3.310.

2.  Attempt to obtain all VA medical records pertaining to the Veteran dated since May 2013.  Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file.

3.  Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any kidney disorder found to be present.  The claims file should be made available to and reviewed by the examiner.  All indicated studies should be performed and all findings should be reported in detail.

The examiner should opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any kidney disorder found to be present were incurred during military service or are due to an event or injury during military service, including exposure to herbicides.

In addition, the examiner should opine as to whether it is at least as likely as not that any kidney disorder found to be present is proximately due to or permanently aggravated by type II diabetes mellitus.  

A rationale for any opinion advanced should be provided.  The examiner should also state what sources were consulted in forming the opinion. 

4.  After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal.  In readjudicating his service connection claim, consider secondary service connection under 38 C.F.R. § 3.310.  If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.

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).




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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).



______________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs