Citation Nr: 1335843 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 13-14 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for skin cancer. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for nephrolithiasis. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from January 1976 to December 1977. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for hearing loss, tinnitus, and an acquired psychiatric disorder, to include PTSD, being remanded 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. FINDINGS OF FACT 1. The Veteran does not have skin cancer that is causally or etiologically related to service. 2. There is clear and unmistakable evidence that the Veteran's nephrolithiasis both preexisted service and was not aggravated beyond its natural progression during service. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for nephrolithiasis have not been met. 38 U.S.C.A. §§ 1131, 1132, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (West 2002); 38 C.F.R. § 3.303 (2013). 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). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Skin Cancer The Veteran contends she is entitled to service connection for skin cancer as it was incurred as a result of sun exposure in service. In a March 2011 statement the Veteran stated that doctors she saw while in Chicago told her that her skin cancer was due to extreme sun exposure. The Veteran stated that the only place she was exposed to sun while in service was in Crete. The Veteran did not describe what duties or activities she contends exposed her to excessive sunlight in service. The Veteran's service personnel records show she was in Greece in 1977. At her December 1977 discharge examination, the Veteran's skin was found to be normal. Her service treatment records contain no complaints or diagnosis of skin cancer or sunburn. A 2009 private treatment record reflects that the Veteran sought treatment for a lesion on her lower back that she reported was in the same place as a cancerous one 20 years ago that was removed. It was found to be benign on biopsy. Multiple basal cell carcinoma lesions were removed in 2003 and 2011. In August 2003 the Veteran's private physician noted the Veteran had scars from multiple basal cell carcinomas being removed from her back in the past. He also noted that she is a "sun worshiper," with marked actinic damage on her face and trunk. Although medical records show the Veteran has been found to have multiple basal cell carcinomas since service, the evidence does not show that the Veteran's skin cancer was incurred in or caused by her service. No skin cancer or sunburns are noted in the Veteran's service treatment records or on discharge. The Veteran has also not contended her skin cancer first appeared in service. Further, no medical opinion evidence is of record suggesting that the Veteran's post-service basal cell carcinomas are related to service, to include as due to sun exposure in service. Although the Veteran herself has opined that her skin cancer is related to sun exposure in service, the Board finds the Veteran is not credible to opine as to etiology of her condition. While the Veteran is competent to make lay observations, the etiology of skin cancer is a complex medical issue for which a lay opinion may not be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Nephrolithiasis In a March 2012 statement the Veteran argued that she had a kidney condition prior to entering service and that the water she drank while in service caused the condition to flare-up and continue. Thus, she argues she is entitled to service connection as her condition was aggravated by service. A veteran who served after December 31, 1946 is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). History provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that a veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)). In this case, the Veteran noted on her January 1976 report of medical history upon entrance into service that she had a history of kidney stones or blood in her urine. The examiner noted nephrolithiasis in 1973. The medical examination report reflects that an x-ray was done and her urine was tested with normal results. Service treatment records show that during service the Veteran was treated for persistent, microscopic hematuria in July 1976 and continued to seek treatment for urinary and kidney problems throughout the year. In December 1976 she was hospitalized with microscopic hematuria and a questionable urinary tract infection. She was hospitalized again in May 1977, after presenting about one year earlier with hematuria and dysuria with pyuria. An August 1977 treatment record notes persistent microscopic hematuria for 14 months. In November 2011 the Veteran was afforded a VA examination. She told the examiner that during high school she passed several stones and granules in her urine. While in Greece, she said she again passed stones and calcifications were noted in the renal substance. She reported intermittent stones since service. The examiner noted diagnoses of nephrolithiasis and urolithiasis and stated that the Veteran was on a low calcium and sodium diet to treat her urolithiasis and has frequent attacks of colic. The examiner opined that the Veteran's condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that idiopathic hypercalciuria, which causes recurrent uretero-nephrolithiasis, has a genetic mechanism of action affecting excretion of calcium. The condition was present prior to the Veteran's service and had the potential to recur without warning. The examiner stated that water the Veteran consumed while in service has no relationship to her condition, that her condition would have existed and persisted independent of service, and that service did not aggravate the excretion of calcium modulated by her genetic makeup. As no kidney condition, including nephrolithiasis, is noted on the Veteran's entrance examination, the presumption of soundness applies. However, the Board finds that there is clear and unmistakable evidence that the disability preexisted service. Specifically, the Veteran herself reported a history of nephrolithiasis dating back to 1973 upon entrance into service and she has continued to report a pre-existing kidney condition in connection with this claim, contending that her service aggravated the condition. Further, the VA examiner opined that the Veteran's condition clearly and unmistakably existed prior to service as idiopathic hypercalciuria, which causes recurrent uretero-nephrolithiasis, and has a genetic mechanism of action. There is also clear and unmistakable evidence that the Veteran's condition was not aggravated by service. Specifically, although the Veteran was treated for urinary and kidney issues in service, primarily persistent microscopic hematuria in her urine, records do not reflect an increase in severity of her condition during service. Her report to the VA examiner was that she passed stones before service, during service, and intermittently since service. Notably, service treatment records don't specifically mention the passage of any stones, although they reflect other urinary and kidney issues, and no post-service treatment records are in evidence showing treatment for kidney issues of any type. Thus, neither the Veteran's service treatment records nor her own contentions show that the Veteran's condition increased in severity during service or that any symptoms present in service constituted a permanent aggravation of her condition. Further, the VA examiner has opined that the Veteran's condition clearly and unmistakable was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that the cause of the Veteran's recurrent uretero-nephrolithiasis had a genetic mechanism and had the potential to recur without warning. The examiner opined that her condition would have existed and persisted independent of service, and service did not aggravate the excretion of calcium modulated by her genetic makeup. The examiner also considered the Veteran's contention that the water she consumed in service aggravated her condition, but concluded that it had no relationship. The Board has considered the Veteran's opinion as to the etiology and aggravation of her condition, including her claim that it was aggravated by the water she drank in service, but finds she is not competent to render such an opinion. While she is competent to state readily observable symptoms such as passing stones, she does not have the education, training and experience to offer a medical diagnosis or opinion as to what may have aggravated the condition. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting her claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The Board further notes that the Veteran sought treatment for urinary and kidney issues in 1976, prior to when her service personnel records indicate she was in Greece. In conclusion, the Board finds the VA examiner's opinion provides significant probative evidence that that the Veteran's kidney condition both preexisted service and was not aggravated by service. The Veteran's own statements and her treatment records also support that her preexisting condition was not permanently aggravated by service. Taken as a whole, the Board finds the evidence is clear and unmistakable that the Veteran's kidney condition preexisted service and was not aggravated by service. As there is clear and unmistakable evidence that the Veteran's kidney condition preexisted service and was not aggravated by service, the Board finds that service connection for the disability is not warranted. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March and July 2011. In the letters, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and private treatment records identified by the Veteran. The Veteran also submitted lay statements. The Veteran has not contended she sought treatment at the VA for skin cancer or nephrolithiasis, and a September 2011 search turned up no records. Although the Veteran has subsequently suggested there may be more recent VA mental health treatment records, such records are not pertinent to deciding the issue of service connection for the above claimed conditions. Neither the Veteran nor her 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. The Veteran was not afforded a VA examination in connection with her claimed skin cancer, but none is required. 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. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. 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 the standard of subsection (B), 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. Here, as the only evidence that the Veteran's claimed disability is related to her military service is her own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. The Veteran has stated only that the only place she was exposed to sun in service was in Crete but offered no specifics as to her sun exposure in or out of service. She further did not contend her skin cancer began in service. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. ORDER Service connection for skin cancer is denied. Service connection for nephrolithiasis is denied. REMAND A remand is required in this case with regard to the Veteran's claims for service connection for PTSD, hearing loss, and tinnitus to ensure that there is a complete record upon which to decide the issue, so that the Veteran is afforded every possible consideration. In March 2012 and May 2013 statements the Veteran argued that the VA examination she was afforded in connection with her PTSD claim was inadequate. She further stated in March 2012 that she was at the Osage Beach VA Clinic when she began having flashbacks and was sent to the Columbia VA Medical Center and held for eight hours. The Veteran's claims file contains no record of a VA examination having been conducted. Further, a computer printout from the Kansas City VA Medical Center shows the Veteran has no records within that system as of September 2011. It does not appear the RO searched for VA treatment records again after the September 2011 request. However, the Veteran's March 2012 statement suggests that such records may exist relating to treatment for a mental health condition, possibly from the period between September 2011 and March 2012. On remand, the RO should search for VA treatment records that may have been added subsequent to September 2011, as records relating to the diagnosis or treatment of an acquired mental health condition may be pertinent to the Veteran's claim. See 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Veteran should also be afforded a VA examination on remand in connection with her hearing loss and tinnitus claims. The Board recognizes that the Veteran is competent to report symptoms that are readily observable, including difficulty hearing and tinnitus. In a March 2012 statement the Veteran stated that the ships while in service were "loud and had lots of means for loud acoustic trauma exposure without having hearing protection." She stated in May 2013 that in service she was "exposed to loud acoustic trauma even as we slept [with] no hearing protection." In service connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds the Veteran should be afforded a VA examination to assess the nature, severity, and etiology of her claimed hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Osage Beach and Columbia VA medical facilities. If records are found and after review of those records the RO finds the Veteran has been diagnosed with an acquired psychiatric disorder related to her service or her clamed stressor has been verified, then the RO should consider whether a VA examination is warranted. 2. Schedule the Veteran for a VA compensation examination to obtain an opinion as to the nature and etiology of the Veteran's claimed hearing loss and tinnitus. The claims folder must be made available to the VA examiner for review. The examiner should evaluate the Veteran's hearing loss and tinnitus, performing any necessary tests. If any hearing loss or tinnitus is diagnosed, the examiner should render an opinion as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that it had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service, to include noise exposure, or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent). In so doing, the examiner should discuss causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable 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). 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). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs