Citation Nr: 1334350 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 01-09 658A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of pancreatitis, to include acute renal failure/kidney problems. 2. Entitlement to service connection for residuals of pancreatitis, to include a digestive disability. 3. Entitlement to service connection for residuals of pancreatitis, to include tension headaches. 4. Entitlement to service connection for residuals of pancreatitis, to include a neurological disability (originally claimed as tremors). 5. Entitlement to service connection for residuals of pancreatitis, to include a nervous disorder. 6. Entitlement to service connection for residuals of pancreatitis, to include a left eye disability. 7. Entitlement to service connection for residual of pancreatitis, to include hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Appellant had active military service from July to December 1980, followed by service in the United States Navy Reserves including periods of active duty for training (ACDUTRA) from 1981 to 1985. These matters come before the Board of Veterans' Appeals (Board) from a May 2001 rating decision of the Chicago, Illinois Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO, in part, denied service connection for residuals of pancreatitis, to include acute renal failure/kidney problems; digestive problems; tension headaches; tremors; nervous disorder; left eye disorder; and, hypertension. The Appellant appealed the RO's May 2001 rating action to the Board. This appeal was most recently before the Board in May 2012. At that time, the Board remanded the issues on appeal to the RO for additional substantive development, namely to schedule the Appellant for VA examination(s) with opinion(s) as to the etiology of the Appellant's claimed disabilities. VA examined the Appellant in July 2012. A copy of the July 2012 VA examination report has been associated with the Appellant's physical claims files. The issues of entitlement to service connection for residuals of pancreatitis, to include a nervous disorder, left eye disability and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Residuals of pancreatitis, to include acute renal failure/kidney problems; digestive disability; tension headaches; and neurological disability (originally claimed as tremors) are not the result of an injury or disease incurred or aggravated in the line of duty during active military service or ACDUTRA; renal calculi and peptic ulcer were not manifested to a compensable degree within a year of discharge from active military service in December 1980. CONCLUSION OF LAW Residuals of pancreatitis, to include acute renal failure/kidney problems; digestive disability; tension headaches; and neurological disability (originally claimed as tremors) were not incurred in or aggravated during active service, including active duty for training, nor may they be presumed to have been incurred in or aggravated during active service. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Before addressing the merits of the issues of entitlement to service connection for residuals of pancreatitis, to include acute renal failure/kidney problems; digestive disability; tension headaches; and, neurological disability (originally claimed as tremors), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473(2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Appellant nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Appellant was notified via post-adjudication letters, dated in January 2003, October 2004 and April 2006, of the criteria for establishing service connection for residuals of pancreatitis, to include acute renal failure/kidney problems; digestive disorder; tension headaches; and neurological disorder (originally claimed as tremors), the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements. As the RO subsequently readjudicated the service connection issues decided herein in subsequent Supplemental Statements of the Case issued throughout the appeal, any initial errors of notification to the Appellant have been corrected with subsequent action and adjudication, and there is no prejudice to him from such errors. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). None of the above-cited letters informed the Appellant of the Dingess elements. However, because the claims for service connection for residuals of pancreatitis, to include acute renal failure/kidney problems; digestive disorder; tension headaches; and neurological disorder (originally claimed as tremors) are being be denied in the analysis below, no effective date(s) or rating(s) will be assigned, thus, there is no prejudice to the Appellant in proceeding with appellate review of these claims. Id. VA has also fulfilled its duty to assist the Appellant with respect to his service connection claims decided in the analysis below. The RO has obtained the Appellant's service treatment records (STRs) and VA and private outpatient treatment and examination reports. In addition, records from Great Lakes Naval Hospital, as well as those from Tomah Memorial Hospital, with the exception of a patient index record, are unavailable. (See RO's January 2010 Formal Finding of Unavailability and VA Form 21-0820, Report of Contact, dated in December 2011, respectively). The Appellant and his representative have also presented written arguments in various documents submitted to VA in support of the claims decided herein. Additionally, in May 2012, the Board, in part, remanded the claims for service connection for residuals of pancreatitis, to include kidney problems/acute renal failure, digestive disorder, tension headaches, and neurological disorder (originally claimed as tremors) to obtain an examination(s) with an opinion(s) with respect to etiology of these disabilities. 38 C.F.R. § 3.159(c) (4). VA examined the Appellant in July 2012. A copy of the July 2012 VA examination report has been associated with the claims files. The Board finds the July 2012 VA examiner's opinions as to the etiology of the Appellant's claimed acute renal failure/kidney problems and currently diagnosed digestive disorder, tension headaches and peripheral neuropathy (originally claimed as tremors) adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for his opinion, and there is no reason to believe that he did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that when VA undertakes to provide a VA examination, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2012 VA examiner's examination and opinions more than adequate, as they were predicated on a full reading of the VA and private medical records in the Appellant's claims files. The VA examiner considered all of the pertinent evidence of record, to include the Appellant's treatment history with respect to his 1981 episode of pancreatitis during a period of active duty for training, and his statements. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues decided herein has been met. 38 C.F.R. § 3.159(c) (4). Given the foregoing, the Board finds that the RO has substantially complied with its May 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that there is no further assistance that would be reasonably likely to substantiate the service connection claims decided herein. II. Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, such as calculi of the kidney or peptic (gastric or duodenal) ulcer, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2013). In this case, the presumption does not apply to the claims for service connection for residuals of pancreatitis, to include acute renal failure/kidney problems and digestive disorder because there is no medical evidence that the Appellant manifested calculi of the kidney or an ulcer (gastric or duodenal) to a compensable degree within one year of discharge from his period of active military service in December 1980. See 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; 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"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as calculi of the kidney and peptic or gastric ulcer and. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the evidence of record does not show that the Appellant has been found to have calculi of the kidney or an ulcer (gastric or duodenal), the provisions of 38 C.F.R. § 3.303(b) are not for application in the analysis below. Active duty for training (ACDUTRA) is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2013). Inactive duty for training (INACDUTRA) is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any state (other than full- time duty). 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2013). Annual training is an example of active duty for training while weekend drills are inactive duty. Certain evidentiary presumptions--such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, such as calculi of the kidney and ulcers, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period ; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim."). The presumption of aggravation under 38 U.S.C.A. § 1153 (West 2002) does not apply to claims based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Therefore, unless "veteran" status has already been established based upon a prior period of service, a claimant must establish "veteran" status for benefits based on aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA. See Donnellan v. Shinseki, 24 Vet. App. 167, 173(2010). III. Merits Analysis As noted in the laws and regulations section above, only "Veterans" are entitled to service-connected disability benefits. To establish status as a "Veteran" based upon a period of active duty for training, a claimant must establish that he was disabled from a disease or injury incurred or aggravated in line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson, 7 Vet. App. at 470. The Appellant does not contend, and the record does not suggest, that he had any renal failure/pancreatitis during his period of active military duty from July to December 1980. Instead, the Appellant contends that he was hospitalized for an episode of pancreatitis during a period of ACDUTRA in May 1981, and, as a result, he developed kidney problems/renal failure; digestive disability; and tension headaches, and a neurological disability (originally claimed as tremors). Initially, the Board finds that Hickson element number one (1), evidence of a current disability, has not been met with respect to claim for service connection for kidney problems/renal failure as a residual of the in-service pancreatitis, thus, this claim will be denied. Hickson, supra. The Board observes that it initially determined in its May 2012 remand that the Appellant had chronic pancreatitis and renal insufficiency, as denoted on VA treatment reports, dated in December 2007 and May 2008. However, a July 2012 VA examiner opined, after a review of the entire medical record, to include the above-cited VA treatment records, as well as a physical evaluation of the Appellant that revealed normal kidney function, that his 1981 episode of pancreatitis had completely resolved without any residual of kidney/renal failure. The July 2012 VA examiner reasoned that there was no medical research that suggested that a resolved kidney failure after years of resolution would recur without provocation. (See July 2012 VA examination report, page (pg.) 23)). Thus, the Board finds that there is no current diagnosis related to this condition. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, in the absence of proof of a present disability, there can be no valid claim or the grant of the benefit service connection for residuals of pancreatitis, to include kidney problems/renal problems is denied. Id. Concerning the claims for service connection for residuals of pancreatitis, to include digestive disorder, tension headaches and neurological disorder (originally claimed as tremors), the Appellant has been diagnosed with gastroesophageal disease (GERD), tension headaches and peripheral neuropathy (i.e., cervical neuropathy and sensory loss of left saphenous nerve). (See July 2012 VA examination report). Thus, Hickson element number one (1), evidence of currently disability, has been met with respect to these claims. Regarding, Hickson element number (2), evidence of in-service disease or injury, the Board notes, as indicated in its May 2012, remand, that on May 17, 1981, the Appellant was admitted to a private hospital for an acute episode of pancreatitis. (See May 1981 report, prepared by St. Francis Medical Center, Lacrosse, Wisconsin, noting that the Appellant had been in "army camp" and was admitted for acute renal failure, secondary to pancreatitis.). It is unclear from the evidence of record whether the Appellant was on ACDUTRA at that time of the May 1981 hospitalization. Notwithstanding the foregoing, because the outcome is contingent upon a medical determination as to whether the above-cited disabilities are etiologically related to the 1981 pancreatitis incident, the Board will resolve doubt in the Appellant's favor and find that he was on ACDUTRA on May 17, 1981 for purposes of the analysis herein. Thus, in view of the foregoing, the Board finds that Hickson element number two (2), evidence of in-service disease or injury, has been met with respect to the claims for service connection for residuals of pancreatitis, to include digestive disorder, tension headaches and neurological disorder (originally claimed as tremors). With respect to Hickson element (3), nexus or relationship, VA opinions, dated in December 2009 and July 2012, are against the above-cited service connection claims. There is no competent evidence that the Appellant's currently diagnosed GERD, tension headaches and peripheral neuropathy were present during active military service or that they was manifested to a compensable degree within one year following discharge from active service in December 1980, and, the Appellant does not contend otherwise. In addition, the Board has found the December 2009 VA examiner's opinion as to the etiology of the above-cited disabilities to be of minimal probative value for reasons that are outlined in its May 2012 remand, and which will not be repeated herein. In July 2012, VA reexamined the Appellant to determine the etiology of his digestive disability, tension headaches and neurological disability (claimed as tremors). After an extensive review of the above-cited service and post-service VA and private medical evidence and physical evaluation of the Appellant, the July 2012 VA examiner opined that the Appellant's GERD was unrelated related to the May 1981 episode of pancreatitis because it presented years later. With regards to the Appellant's tension headaches and peripheral neuropathy (i.e., cervical neuropathy and sensory loss of the left saphenous nerve), the July 2012 attributed these disabilities to chronic sinusitis (tension headaches) and cervical degenerative joint disease and tarsal release procedure. Overall, the July 2012 VA examiner maintained that there was no credible medical evidence that outlined a remote episode of resolved pancreatitis to any of the above-cited disabilities. (See July 2012 VA examination report). The Board finds the July 2012 VA examiner's opinions to be of high probative value as they are consistent with the evidence of record, such as the May 1981 episode of pancreatitis. In addition, in formulating his opinions, the July 2012 VA examiner provided rationale for his respective opinions, to include medical research. Thus, there is no reason to believe that the July 2012 VA examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, supra. Accordingly, Hickson element (3), evidence of relationship or nexus has not been satisfied, and the Appellant's claims for service connection for residuals of pancreatitis, to include digestive disorder, headaches and neurological disorder (originally claimed as tremors) fail on this basis. Conclusion The Board notes that the Appellant is competent to testify as to his own observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) [lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge]. The Appellant has maintained in written statements that his acute renal failure/kidney problems, digestive disability, tension headaches; and neurological disorder are the result of a May 1981 episode of pancreatitis during a period of ACDUTRA. The July 2012 VA examiner pertinently opined to the contrary. To the extent the Appellant himself now attributes these disabilities to the 1981 pancreatitis episode, the Board ascribes greater probative value to the negative VA July 2012 opinion. The Appellant is clearly competent to report having been hospitalized in 1981 during ACDURA for an episode of pancreatitis, and this has been confirmed by the medical evidence of record. However, the Appellants lacks the competence to provide an opinion as to diagnosing renal failure and kidney problems and relating his diagnosed GERD, tension headaches and peripheral neuropathy to the May 1981 episode of pancreatitis. Indeed, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, determining that the May 1981 episode of pancreatitis decades ago caused the Appellant to have kidney problems/renal failure, GERD, tension headaches; and, peripheral neuropathy are outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Accordingly, Hickson elements (1) and (3), evidence of current disability (renal problems/kidney failure) and relationship or nexus (digestive problems, tension headaches and neurological disorder), has not been satisfied, and the Appellant's claims for service connection for residuals of pancreatitis, to include kidney problems/renal failure, digestive disorder, headaches and neurological disability (originally claimed as tremors) fail on these bases. ORDER Service connection for residuals of pancreatitis, to include acute renal failure/kidney problems is denied. Service connection for residuals of pancreatitis, to include a digestive disorder is denied. Service connection for residuals of pancreatitis, to include tension headaches is denied. Service connection for residuals of pancreatitis, to include a neurological disorder (originally claimed as tremors) is denied. REMAND In its May 2012 remand directives, the Board requested that the respective examiner provide opinions as to whether it was as least as likely as not that the Appellant's hypertension and nervous disorder were "[e]etiologically related to an episode of pancreatitis during ACDUTRA in May 1981." (See May 2012 Board remand, page (pg. 5)). (Parenthetically, the Board notes that its May 2012 remand directives mistakenly did not contain a request for an etiological opinion as to the Appellant's left eye disability (i.e., left eye blepharitis)). A review of the July 2012 VA examination report shows that the examiner stated that he had reviewed the claims files and medical records. The July 2012 VA examiner opined that the Appellant's hypertension was not [d]ue to renal dysfunction or caused by any kidney condition. The VA examiner, however, did not provide an opinion as to any relationship between the Appellant's hypertension, as well as a nervous disorder, and the 1981 episode of pancreatitis, as requested by the Board in its May 2012 remand directives. (See July 2012 VA examination report, pg. 14). Under the circumstances, the Board is unable to find that there has been compliance with its May 2012 remand directives, and that it may not proceed with a decision at this time with respect to the claims for service connection for residuals of pancreatitis, to include hypertension and nervous and left eye disorders. See Stegall v. West, 11 Vet. App. 268 (1998). Given the foregoing, these claims must be remanded yet again, to obtain a supplemental opinion, or, in the alternative, to afford the Appellant an examination(s) and to obtain an etiological opinion(s). Accordingly, the case is REMANDED for the following action: 1. A clarification should be requested from the physician who conducted the Appellant's July 2012 VA examination, as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Appellant's hypertension, and nervous and left eye disabilities are caused by his 1981 episode of pancreatitis while on ACDUTRA. If the VA physician who performed the July 2012 examination is not available, schedule the Appellant for VA examination to determine the nature and etiology of his hypertension and nervous and left eye disabilities, claimed as residuals of pancreatitis. The claims folders and a copy of this remand must be made available to the examiners. The examiners should opine, as it relates to their respective disability, whether it is at least as likely as not (50 percent probability or greater) that the Appellant's hypertension and nervous and left eye disabilities have been caused by the Appellant's May 1981 episode of pancreatitis while on ACDUTRA. In offering his or her respective assessment, the July 2012 examiner or other examiner must acknowledge and discuss the competent lay report of the Appellant regarding the onset and chronicity of his symptoms. All findings, along with a fully articulated medical rationale for each opinion expressed, should be set forth in an examination report. In addition, the July 2012 VA examiner or other examiner must acknowledge and discuss lay evidence regarding any continuity of symptomatology since service. If the July 2012 VA examiner or other examiner determines that he or she is unable to provide the requested medical opinion without resort to speculation, this should be indicated in his or her report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. If the claims for service connection for residuals of pancreatitis, to include hypertension, nervous and left eye disabilities remain denied, the RO/AMC must issue a Supplemental Statement of the Case (SSOC) to the Appellant and his representative and provide them with an opportunity to respond, before the case is returned to the Board. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Appellants' Appeals or by the United States Court of Appeals for Appellants 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans Appeals Department of Appellants Affairs