Citation Nr: 1336174 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-24 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a history of intermittent gross hematuria and intermittent flank pain, claimed as due to an allergic reaction to an anthrax vaccination. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1990 to July 1990, January 2004 to May 2005, and October 2007 to January 2008. He also had additional unverified service periods with the Arkansas Army National Guard between June 2007 and July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. A June 2010 VA Form 9 was submitted reflecting the Veteran's request for a video conference hearing before the Board. A hearing was scheduled for September 2011 but the Veteran did not appear and did not provide any explanation for his absence. Accordingly, his request for a hearing is considered withdrawn and the Board may proceed with review of the claims. 38 C.F.R. § 20.704(d) (2013). A private attorney representative revoked his power of attorney and withdrew as the Veteran's representative in October 2011 after the certification of this appeal. The record reflects that written notice was provided to both the Veteran and the Board. A November 2011 notice letter was sent to the Veteran affording him the opportunity to select another representative, and the Veteran has not indicated that he desires another representative. Thus, the Board will proceed under the assumption that he wishes to represent himself. See 38 C.F.R. § 20.608(a) (2013). This issue was previously presented to the Board in November 2012, at which time it was remanded for additional development, to include verification of the Veteran's current address and his periods of active duty for training (ACDUTRA). The Board finds the required development has been substantially completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Intermittent hematuria and flank pain are not disabilities for which service connection may be granted. 2. The Veteran does not have a current kidney or genitourinary disability for which service connection may be awarded. CONCLUSION OF LAW The criteria for service connection for a kidney or genitourinary disorder have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In a June 2009 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, this letter provided him with the general criteria for the assignment of an effective date and initial rating. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, VCAA notice was provided the Veteran prior to the rating determination on appeal; therefore, no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, his lay contentions, and various private and VA treatment records. Finally, the Veteran was afforded VA medical examinations in July 2009 and July 2013. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the question of current disability to decide the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006) (a VA examination or opinion is necessary where there other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim). The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection for a Kidney or Genitourinary Disorder The Veteran seeks service connection for intermittent hematuria and flank pain, claimed as resulting from an allergic reaction to a June 2007 anthrax vaccination administered as part of his National Guard service. He claims he has current kidney and/or genitourinary disabilities directly resulting from this vaccination. He has reported that he experienced allergic reactions to several prior anthrax vaccinations administered as part of service, but they did not result in any permanent or chronic disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran does not have a diagnosis of cardiovascular-renal disease, calculi of the kidney, or any other of the chronic diseases listed at 38 C.F.R. § 3.309(a). For this reason, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in-service symptoms and continuous post-service symptoms and 38 C.F.R. § 3.309(a) for such disorders within one year of service do not apply in this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an initial matter, the Board recognizes that in June 2007 reserve service, the Veteran was administered an anthrax vaccination, as documented within his service treatment records. In July 2007, he presented a letter from his private physician, Dr. M.C., M.D., reflecting onset of hematuria following the June 2007 vaccination, and January 2008 service treatment records also indicate the Veteran reported to service medical care providers intermittent hematuria following the June 2007 vaccination. Thus, a June 2007 vaccination followed by reports of intermittent hematuria is recognized by the Board. The Board also notes, however, that neither service medical care providers nor the Veteran's private physician diagnosed an accompanying kidney or genitourinary disease or disability. A July 2007 CT scan of the abdomen ordered by the private physician, Dr. C., was "within the range of normal" with "no abnormalities visualized." Dr. C. diagnosed hematuria and side effects of anthrax vaccination. The Board notes that the Veteran has already been awarded service connection for recurrent headaches as due to an allergic reaction to an anthrax vaccination. In a subsequent April 2009 letter, Dr. C. stated the Veteran's symptoms had resolved. Dr. C. also stated that subsequent July 2008 CT scans of the Veteran's kidneys continued to indicate normal kidneys. Dr. C. did not provide a diagnosis of a kidney or genitourinary disorder at that time. VA treatment records have also been obtained and reviewed. While the Veteran has reported to VA medical care providers intermittent hematuria and pain of the flanks in the lower abdomen, no examiner has diagnosed a kidney or genitourinary disorder. 2008 VA clinical records specifically noted that a prior kidney and genitourinary work-up was negative. A VA genitourinary examination was afforded the Veteran in July 2009. The history of reported hematuria and flank pain following a June 2007 anthrax vaccination was noted. The Veteran stated CT scans performed by his private physician were within normal limits, without evidence of masses, kidney stones, or other abnormalities and that urinalysis studies performed by his private physician were also within normal limits, as were his creatine levels. The examiner, a VA physician, assessed that hematuria and flank pain were not generally considered side effects of the anthrax vaccination. On clinical evaluation, the Veteran displayed no evidence of a kidney or genitourinary abnormality. His creatinine levels were within normal limits, and he did not require renal dialysis. No kidney or genitourinary disorder was diagnosed. Likewise, the most recent VA kidney and genitourinary examination, afforded the Veteran in July 2013, also did not result in a diagnosis of a kidney or genitourinary disorder. The VA examiner stated that the Veteran did not currently have, and did not have a history of, a kidney disorder. Upon physical evaluation, the VA examiner found no evidence of renal dysfunction, neoplasms or other growths, urinary tract infection, or other abnormalities of the kidneys or genitourinary system. Ultrasound imaging of both the right and left kidneys as well as the bladder was also within normal limits. A urinalysis was also ordered, but the Veteran did not report to the lab for this study to be conducted. Overall, the examiner found no evidence of any current kidney or genitourinary disorders. Based on the above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current disability of the kidney or genitourinary system for which service connection may be awarded. As a service connection claim requires, at a minimum, competent evidence of a current disability, the Board finds that a preponderance of the evidence is against the claim for service connection for a kidney or genitourinary disorder, claimed as intermittent hematuria and/or flank pain. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran himself asserts that he has a kidney or genitourinary disorder as the result of an anthrax vaccination. The Board finds that the Veteran is competent to report such observable symptoms as hematuria and flank pain, but is not competent to diagnosis a kidney or genitourinary disability, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The diagnosis of a kidney or genitourinary disability is based on medical evaluation and clinical testing by a competent expert, as any such disability is internal to the body and not easily observed via the senses by a lay party. Additionally, as already discussed above, such clinical findings in the present case as analysis of creatine levels; CT, ultrasound, and X-ray studies of the kidneys and bladder; and urinalysis have all been essentially within normal limits, without indication of any current disabilities. Some medical issues require specialized knowledge and training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Lay testimony is not competent in the present case on the question of diagnosis of current disability of the kidney or genitourinary system because, while the Veteran is competent to report such observable symptomatology as flank pain and, in some instances, hematuria, he is not competent to diagnosis an underlying kidney or genitourinary disorder. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). The Board does find the Veteran competent to report the chronicity of such observable symptomatology as flank pain and hematuria, but pain and hematuria are not disabilities. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (stating that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). As noted above, the normal findings of the kidneys and genitourinary system were noted on VA medical examination in 2009 and 2013, and private medical records dated between 2007 and 2009 are, likewise, negative for any diagnosis of a kidney or genitourinary disorder. The Veteran has himself reported, according to the 2013 VA examination report, that he was not diagnosed with a kidney disorder by his private physician. In addition, the imaging studies and lab tests have come back negative for any abnormalities. See Jandreau, 492 F.3d at 1377 (layperson is competent to report a diagnosis by a doctor). For the foregoing reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a kidney or genitourinary disorder characterized by intermittent hematuria and flank pain, and the claim for this disability must be denied; therefore, the benefit-of-the-doubt doctrine is, not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a kidney or genitourinary disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs