Citation Nr: 1333871 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-27 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a renal disorder, claimed as secondary to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The appellant had active service from January 1966 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in December 2010, September 2012 and April 2013, when it was remanded for additional development. The case is now before the Board for final appellate consideration. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT There has been no demonstration by competent medical evidence or by competent and credible lay evidence that the Veteran's chronic renal insufficiency was proximately caused or aggravated by service-connected disability. CONCLUSION OF LAW Chronic renal insufficiency was not incurred in or aggravated by active service, and is not proximately due to, the result of, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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). Notice was provided in an October 2007 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private treatment records, a June 2013 VA Disability Benefits Questionnaire (DBQ) addendum medical opinion. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The development requested by the Board's prior remands has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Veteran failed to respond to a September 2012 request for contact information and authorization to allow VA to obtain treatment records from a private physician. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2013 VA addendum medical opinion obtained in this case is adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for the opinion offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. 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 Court of Appeals for the Federal Circuit (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, as to the claim. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that his chronic renal insufficiency is secondary to his service-connected diabetes mellitus or other service-connected disability. He is service-connected for low back strain with degenerative changes, evaluated as 20 percent disabling; internal derangement, right knee, evaluated as 20 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; status-post coronary artery bypass graft associated with diabetes mellitus, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity associated with diabetes mellitus, evaluated as 10 percent disabling; peripheral neuropathy of the left lower extremity associated with diabetes mellitus, evaluated as 10 percent disabling; and residuals, scar, right hand metacarpal fracture, evaluated as noncompensable. A December 2007 VA examination report confirmed that the Veteran had a present diagnosis of chronic renal insufficiency. Subsequent VA treatment records reflect continued diagnosis and treatment for a renal disorder. A February 2011 VA outpatient treatment report noted chronic kidney disease since 2005 with long-term use of Naproxen or Etodolac. It noted that there was no proteinuria or cellular elements in the Veteran's urine. The pertinent diagnosis was chronic kidney disease stage III. The plan was to stop all NSAIDs and avoid diuretics. A private physician provided a May 2000 statement that the Veteran was diagnosed with diabetes mellitus in January 2000. In a May 2008 statement, the private physician stated that the Veteran's "renal insufficiency is due to his diabetes." The private physician did not provide any explanation or rationale for this opinion. The record contains various VA examination reports that the Board previously found to be inadequate. In a June 2013 VA DBQ addendum medical opinion, a VA examiner stated that he had reviewed the Veteran's claims file in VBMS. The VA examiner provided the opinion that it was less likely as not that any portion of the Veteran's claimed renal pathology was etiologically related to any one or more of his service connected disabilities. The VA examiner also provided the opinion that it was less likely as not that any portion of the Veteran's current claimed renal pathology was caused or made worse/aggravated by any one or more of his service connected disabilities. Finally, the VA examiner provided the opinion that it was less likely as not that any medication taken by the appellant, such as Naproxen, for the treatment of any service-connected disability caused or made worse/aggravated the claimed renal disease. The examiner fully explained his opinions. He reviewed the Veteran's historical lab results, which he stated showed that the Veteran's renal failure was mild. The Veteran was not followed by nephrology, and was not on dialysis. The Veteran's condition had remained relatively stable over the past two decades. The examiner stated that the Veteran's microalbumin was measured at 34.9 mg/L on 2/28/2011; this was far below the 300 mg/L level that the VA uses for diagnosis of diabetic nephropathy. Thus, the Veteran's renal disease was by definition not etiologically related to his diabetes, and thus by inference was not worsened or aggravated by it either. The examiner observed that the Veteran's diabetic peripheral neuropathy had nothing whatsoever to do with his renal disease, either in its etiological cause or aggravation. This condition was a side effect of his diabetes which affected the nerves of his lower extremities, and not his kidneys. Likewise, his lumbar spine DDD/DJD and right knee DJD had nothing whatsoever to do with his renal disease, either etiologically causing it or aggravating it. These were orthopedic problems and not metabolic medical conditions. With regard to the Naproxen taken for the Veteran's service-connected orthopedic problems, the examiner noted that it was true that most NSAIDS had both renal and hepatic side effects, but one must take them in large quantities over a period of years [to develop these effects]. The examiner noted that the Veteran's medical records did contain documentation of prescriptions for Etodolac and Meloxicam within the past decade, and that the Veteran did state in 2011 that he had also been taking Naproxen for several years. The examiner stated that once again it was nearly impossible to accurately quantify how much NSAIDS the Veteran took over the past decade without resorting to mere speculation. The clear implication of this statement is that it would be speculative to conclude that the Veteran did take large amounts of NSAIDS over a period of years, and thus it would be speculative to conclude that NSAID did cause or aggravate the Veteran's chronic renal insufficiency. The Board finds that the examiner's reasoning is sound, and that this situation is different from the one addressed in Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the examiner was unable to render any nexus opinion without resort to mere speculation. In the present case, despite his use of the word "speculative" when addressing the amount of the Veteran's past NSAID use, the examiner was able to provide a nexus opinion (that it was less likely as not that any medication taken by the Veteran, such as Naproxen, for the treatment of any service-connected disability caused or made worse/aggravated the Veteran's chronic renal insufficiency) without resorting to speculation. Moreover, even without the examiner's negative opinion, it remains that there is no competent medical evidence that it is at least as likely as not that the Veteran's NSAID use caused or aggravated a chronic renal disorder. The February 2011 VA plan to discontinue NSAIDS is not evidence that past NSAID use had aggravated the Veteran's renal disorder. The February 2011 treatment note provides no indication that this plan was anything other than a prophylactic measure to prevent possible future aggravation of the Veteran's renal disability. Finally, the examiner stated that the Veteran's renal failure began as far back as 1993 with elevated creatinine levels, which was before he began taking the Naproxen. The Board finds that the June 2012 addendum medical opinion constitutes probative evidence against the Veteran's claim. It is based on a thorough review of the medical record, including the February 2011 treatment note. The examiner explained the opinions with references to the Veteran's post-service medical history and lab results, to which he applied his own medical expertise. This fact is particularly important, in the Board's judgment, as the references make for more convincing rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). By contrast, the May 2008 private medical opinion was a bare assertion with no explanation or rationale. Thus, the Board finds that it lacks probative weight. See Bloom, supra; Prejean, supra; and Elkins, supra. The Board is aware that the record contains two recent VA DBQs, conducted in September 2013. However, neither DBQ supports the Veteran's claim for service connection for a renal disorder, secondary to service-connected disability. A September 2013 VA Diabetes Mellitus DBQ provides a sole diagnosis of diabetes mellitus, type II. It specifies that the Veteran did not have any other diagnosis that pertained to diabetes mellitus or its complications. The DBQ indicates that the Veteran did have diabetic neuropathy or renal dysfunction caused by diabetes mellitus. However, in an accompanying rationale section, the examiner clarified that the Veteran reported he had kidney disease. The examiner stated that since the Veteran had diabetes and hypertension, it was at least as likely as not that "any kidney disease he [did] have" must be related to one or both of those conditions in the absence of any other causative factors. The examiner reiterated that he was unable to give a firm diagnosis of kidney disease based on the available information. He referred to an accompanying Kidney Conditions DBQ. The Kidney Conditions DBQ, dated the same day, provides no diagnosis at all. Significantly, the examiner did not select an available diagnosis of diabetic nephropathy. The examiner reported that the Veteran claimed his doctor had told him he had kidney disease most likely caused by diabetes and/or hypertension. The examiner stated that it was impossible for him to provide a kidney diagnosis with the information available. The Board finds that these DBQs do not support the Veteran's claim. They are not probative evidence that the Veteran has a renal disorder, secondary to service-connected disability. In neither case did the VA examiner himself provide a diagnosis of diabetic nephropathy. The VA examiner merely recited the Veteran's own assertion that a physician had told him he had such a diagnosis, related to diabetes mellitus and/or hypertension. A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Indeed, the Board finds it significant that while the VA examiner acknowledged the Veteran's belief that he had a renal disorder secondary to a service-connected disability, the VA examiner himself did not endorse this theory. In addition, the nexus opinion in the Diabetes Mellitus DBQ has no probative weight. It is theoretical (if the Veteran had kidney disease) and qualified (in the absence of any other causative factor). The Board recognizes that the September 2013 DBQs have not been considered by the agency of original jurisdiction (AOJ) as they pertain to the issue on appeal. Moreover, neither the Veteran nor his representative has provided a waiver of initial consideration by the AOJ of this evidence. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the AOJ); 38 C.F.R. §§ 19.37, 20.1304 (2013). However, the Board finds that the September 2013 DBQs are not "pertinent" to the Veteran's claim, in that they neither support his contentions nor trigger VA's duty to obtain a medical opinion under McLendon v. Nicholson, 20 Vet. App. 79 (2006). See 38 C.F.R. § 20.1304(c) (2013) (evidence referred to the Board by the AOJ is not pertinent if it does not relate to or have a bearing on the appellate issue or issues). Thus, the Veteran's claim need not be referred back to the AOJ for initial consideration of the September 2013 DBQs. Id. (only pertinent evidence received by the Board must be referred to the AOJ for review if there is no waiver). The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. The Board finds that his assertions are credible. However, the Veteran's contentions that his chronic renal insufficiency was caused or aggravated by service-connected disability do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's chronic renal deficiency was caused or aggravated by service-connected disability) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay 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. Jandreau, supra. The Veteran is competent to state that he observed the claimed symptoms of chronic renal insufficiency after the development or treatment of service-connected disabilities. However, he is not competent to attribute the coincidence of symptoms occurring after development or treatment of service-connected disabilities as establishing the diagnosis and etiology of his current chronic renal insufficiency. He is not competent to state that his chronic renal insufficiency was caused or aggravated by a service-connected disability, or the treatment of a service-connected disability. As such, the Board finds that the Veteran's assertions are outweighed by the June 2013 VA addendum medical opinion. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for chronic renal insufficiency, to include as secondary to service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a renal disorder, claimed as secondary to service-connected disability, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs