Citation Nr: 1336549 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-17 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a kidney disability with end stage renal disease requiring hemodialysis. 2. Entitlement to service connection for pes planus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1977 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. This case was previously before the Board in June 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. This case is once again before the Board for appellate consideration of the issues on appeal. The remand instructed the AOJ to make additional efforts to obtain service treatment records, which were done, with a finding made no additional records were available, and obtain medical opinions as to the relationship between the claimed conditions and the Veteran's military service, which was done in February 2012, and the claims were readjudicated in May 2012. Therefore, there was substantial compliance with the Board's remand instructions. FINDINGS OF FACT 1. A kidney disability was not manifested in active service, and any current kidney disability, or residuals thereof, is not otherwise etiologically related to such service. 2. Pes Planus was not manifested in active service, and any current pes planus disability is not etiologically related to such service. CONCLUSIONS OF LAW 1. A kidney disability was not caused by active service. 38 U.S.C.A. §§ 1110, 1131 (2002); 38 C.F.R. § 3.303 (2012). 2. Pes Planus was not caused by active service. 38 U.S.C.A. §§ 1110, 1131 (2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (2002). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran received notification prior to the initial unfavorable agency decision through a January 2009 letter that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his service connection claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the process of his claim and given ample time to respond. The Veteran's claim was subsequently readjudicated, most recently in a May 2012 supplemental statement of the case. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (2002); 38 C.F.R. § 3.159 (2012). Limited service treatment records are associated with the claims file. With respect to missing service treatment records, there is a heightened obligation to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). In accordance with the above cases, the RO determined that further efforts to obtain such records would be futile, and notified the Veteran in an April 2012 letter that these records are missing and requested he provide any records in his possession. No additional records were submitted by the Veteran in response to this request. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. See 38 C.F.R. § 3.159(c)(4). The Veteran was afforded a VA examination in February 2012. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds the VA examination adequate for the purposes of the present claim, as it involved a review of the Veteran's pertinent medical history as well as a physical examination and provides a discussion of the relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an 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. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Kidney disabilities and pes planus are not chronic diseases under 38 C.F.R. 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply with respect to the instant claims. Kidney Disability The Veteran asserts he is entitled to service connection for a kidney disability as directly related to his active service. Specifically, the Veteran asserts that his kidney condition developed as a result of being prescribed non-steroidal anti-inflammatory drugs (NSAIDs) such as Motrin or aspirin by an Army physician as a part of his treatment for a back condition. See August 2013 Informal Hearing Presentation. A review of the Veteran's service treatment records does not reveal complaints or a diagnosis of kidney disease or kidney failure or any other associated problems with the kidneys. Further, the Veteran does not allege that his kidney disability was first manifested in service. Rather, the Veteran is contending that being prescribed NSAID's in service for back spasms, led to a kidney condition to manifest post service. The Veteran states that he was seen three times in service for back pain and prescribed Motrin as a part of his treatment. See April 2011 Informal Hearing Presentation. There are service treatment records available showing that the Veteran was seen for back pain on the following dates; September 17, 1987, September 21, 1987 and November 20, 1987. On the two occasions in September, it is noted that the Veteran was prescribed Motrin to treat his back spasms. See generally Service Treatment Records. To support his claim for service connection, the Veteran has submitted several reports from private physicians that support his contention that he is suffering from a kidney disability with end-stage renal disease. See March 2006 Treatment Notes from Guam Memorial Hospital Authority; see also February 2008 Letter from Dr. Saied Safabakhsh. As such, there is evidence of a current disability and the issue becomes whether the Veteran's kidney disability either began during or was otherwise caused by his military service. During the development of his claim, the Veteran was afforded a VA examination. The examiner was asked to opine on the etiology of the Veteran's current disability and to take in consideration the Veteran's contentions that his current kidney disability is directly related to him being prescribed NSAIDs during service. Following a review of the claims file, and a physical examination of the Veteran, the VA examiner opined that the Veteran's current kidney disability is less likely as not related to his active service. See February 2012 VA Examination. The examiner based this conclusion on the lack of evidence in the Veteran's service medical records of a diagnosis or complaint of abnormal kidney function in service. Id. The examiner goes on to note that the Veteran did not seek any medical evaluations between the time he was discharged from service in 1992 until September 2005, "when he presented to Guam Memorial Hospital with complaints of severe hypertension and numbness to the left side with CT noting intracerebral hemorrhage to right external capsule and admitted for hypertensive crisis and intracerebral hemorrhage and acute renal failure superimposed on chronic renal failure due to hypertensive nephrosclerosis." Id. The Veteran's representative argues that the examination was inadequate because the examiner did not fully address the new evidence that the Veteran provided, namely that NSAIDs can cause renal failure. However, the examiner does in fact address this theory directly by stating, "while it is true that NSAID medications of which Ibuprofen is one type can cause renal failure, review of medical literature notes that [renal failure] is associated with chronic use of the NSAID and in my opinion is a less likely cause of his chronic renal failure. The more likely cause for his chronic renal failure is his hypertension (which on admission in 2005 he was suffering from a hypertensive crisis) and his diabetes mellitus, as both conditions are known causes for renal failure." Id. The representative also argues that the examiner incorrectly relied on an absence of medical records, especially problematic since some of the Veteran's service treatment records are missing. This is not supported by the four corners of the examination report. The Veteran supplied a history to the examiner of a decade of use of NSAIDs during service, and nowhere does the examiner question the veracity of that statement. Therefore, the examiner was well aware of the Veteran's reported history, yet still provided a negative opinion. Simply because the representative disagrees with the conclusion that was reached, this does not mean the opinion was inadequate. The representative also argued in the 2013 Informal Hearing Presentation that the examiner failed to address whether NSAID use during service contributed to or increased the likelihood that the Veteran would later develop renal failure, or whether the NSAIDs contributed to the hypertension or the diabetes mellitus that the examiner concluded was the likely cause of the renal failure. There is absolutely no indication in the evidence that such theories are even plausible in the Veteran's case - or even plausible according to general medical principles - so there is no requirement that the examiner address such speculation. While the Veteran has submitted numerous treatment notes from various physicians, none of them are probative of the issue at hand and that is whether the Veteran's condition either began during or was caused by his military service. As such, the Board finds the VA examination adequate and the examiner's opinion probative on the issue of etiology. The Veteran's lay statements that his kidney disease is related to his service are simply not competent, since such a relationship is not subject to lay observations, but instead involves internal disease processes. For the reasons discussed above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a kidney disability and the benefit of the doubt rule does not apply. See 38 C.F.R. § 5107. Accordingly, the claim for service connection for a kidney disability with end-stage renal failure must be denied. Pes Planus The Veteran asserts he is entitled to service connection for bilateral pes planus as directly related to his active service. Specifically, the Veteran claims that he was subjected to high impact training while in the military and while attending airborne school, which led to his pes planus. The Veteran states that he has suffered from this condition since service. See April 2011 Informal Hearing Presentation. The Board observes that the Veteran is competent to report a diagnosis of pes planus or flat feet. See Charles v. Principi, 16 Vet. App. 370, 374-75 (appellant competent to testify regarding symptoms capable of lay observation). Therefore, based on the Veteran's reports, a diagnosis of bilateral pes planus is established. As such, there is evidence of a current disability and the issue becomes whether the Veteran's bilateral pes planus either began during or was otherwise caused by his military service. A review of the Veteran's service treatment records does not reveal complaints or a diagnosis of pes planus. Even though only limited service treatment records are available there are copies of the Veteran's enlistment and re-enlistment examination and the Veteran's feet were presented as normal upon clinical evaluation. See April 1977 Report of Medical Examination; January 1987 Report of Medical Examination. As a result, the Veteran is presumed physically sound upon entry into military service. During the development of the Veteran's claim, he was provided a VA examination where the VA examiner diagnosed the Veteran with bilateral pes planus. Following a review of the claims file, and a physical examination of the Veteran, the examiner opined that the Veteran's bilateral pes planus is less likely as not related to his active service. The examiner based this conclusion on the lack of evidence in the Veteran's service records of a diagnosis or complaint of pes planus. Further, the examiner addressed the Veteran's contentions that his bilateral pes planus was caused by high impact, parachute training. "Review of medical literature notes that pes planus can be an acquired condition due to posterior tibial tendon insufficiency, tarsal coalitions, foot trauma, arthritis of the feet and [d]iabetes mellitus as well as other conditions such as Marfan's etc. While it is true that parachute jumping could have caused foot trauma...It is more likely that his pes planus is a consequence of aging as longitudinal arch of the foot can weaken as one ages thereby causing pes planus." See February 2012 VA Examination. In support of his claim, the Veteran submitted several treatment records from the VA in Honolulu and private treatment records from both VA and private physicians in Guam. VA treatment notes from October 2005 state that he never saw a physician between the time he was discharged from the military in 1992 and the time he presented to the hospital in September 2005 with acute renal failure. See October 2005 VA Treatment Notes. Since the Veteran's 2005 hospitalization for renal failure, he has been seen on numerous occasions for a variety of health issues, including hypertension, kidney disability, diabetes mellitus and physical therapy rehabilitation after his 2005 hospitalization. His physical therapy was specifically designed to help the Veteran become independently ambulatory with a device for a distance for 250 feet. See December 2005 Guam Memorial Hospital Treatment Notes. The physical therapist makes several notations regarding the Veteran's mobility and not once does she make a notation of the Veteran complaining of his pes planus nor does she diagnose the Veteran with pes planus. Records indicate that the Veteran saw the physical therapist on 61 occasions between December 2005 and November 2006. Id. The Veteran had his physician at the VA outpatient clinic in Guam write a statement in support of his claim. The physician stated the Veteran does have bilateral pes planus and that the condition makes it difficult to walk for extended distances because of the associated pain. See May 2008 VA Guam Outpatient Clinic Treatment Notes. Also, a VA treatment note from May 2008 shows the Veteran requested assistance with his "flatfoot" condition. See May 2008 VA Treatment Notes. However, none of the additional medical records (private or VA) from 2008 or 2009 show complaints regarding his pes planus. Although the Veteran has reported that his pes planus has been symptomatic while in service and that he has continued to be symptomatic ever since, he has submitted no competent evidence of any post-service complaints, findings, formal diagnosis of pes planus, or treatment until May 2008, approximately 16 years after discharge from service. This lapse in time between service and the first treatment notes regarding pes planus weighs against the Veteran's claim. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc). There are numerous statements in the Veteran's record stating the Veteran did not seek any medical attention for 13 years after being discharged from service. The Veteran's allegations as to continuous symptoms since service are not credible. This is not based on an absence of medical evidence, but on the fact that when the Veteran finally did seek medical attention for an unrelated health issue, he did not mention his pes planus to any one of the numerous medical professionals treating him between 2005 and 2008 - even the ones assisting him with rehabilitation. It is reasonable to conclude that if the Veteran had had foot pain for more than a decade and a half, he would have reported it, but he did not until he filed his claim for VA compensation. This fact weighs heavily against his assertions. Finally, the fact is that the only competent medical opinion on record that addresses the etiology of the Veteran's current bilateral pes planus is the opinion of the February 2012 examiner, in which the examiner gave a negative opinion weighing against finding that the Veteran's pes planus was either incurred in or caused by the Veteran's service. The Veteran's contradictory statements regarding the origin of his pes planus disability weigh against his credibility. He submitted a statement in support of his claim wherein he stated that he "did not have pes plano [sic] prior to entering service and that he began to have problems with his feet as a result of his military training." See April 2011 Informal Hearing Presentation. As evidence, the Veteran refers to the fact that his record is silent as to pes plano [sic] at induction" and therefore he should be presumed sound. Id. However, in the Veteran's notice of disagreement he states that "the Pes Plano [sic] is a birth defect and was aggravated by service." See October 2009 Notice of Disagreement. His representative also presents alternative theories - stating in the 2011 Informal Hearing Presentation that the Veteran did not have pes planus before service and should be presumed sound, and then arguing in the 2013 Informal Hearing Presentation that the VA examination was inadequate because it did not address aggravation of the Veteran's pre-existing pes planus. The fact is - although some service treatment records are missing - the Veteran's 1977 entrance examination is of record, and it does not show pes planus or any foot abnormalities. It is factually and legally incorrect that the examiner should have opined as to aggravation because there was no pre-existing condition to aggravate. The Veteran's statements that he had pes planus prior to service, although generally competent in that they regard an observable condition, are unequivocally contradicted by the entrance examination and are therefore not credible. The representative also argues that the examination was inadequate because the opinion did not consider whether the parachute jumping during service accelerated or aggravated the natural aging process, leading to flat feet. There is absolutely no indication in the evidence that such theories are even plausible in the Veteran's case - or even plausible according to general medical principles - so there is no requirement that the examiner address such speculation. When reviewing the entirety of the evidence presented for the Veteran's claim of service connection for bilateral pes planus, the Board finds that a preponderance of the evidence is against the Veteran's claim. There is no evidence of pes planus in service, nor is there evidence of treatment or complaints of pes planus for several years after service discharge. Therefore, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current bilateral pes planus and his active service. There is no competent evidence or competent medical opinion in support of his claim that his current bilateral pes planus is the result of his active service. The Veteran claims he was symptomatic for pes planus upon discharge from service, but when he finally saw a medical professional approximately 13 years after service, he did not raise any complaints concerning his feet. Lastly, the VA examiner gave a negative opinion as to the etiology of the Veteran's pes planus and provided a rationale on how he reached his conclusion and as a result, the Board finds the examiner's opinion highly probative. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral pes planus, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107. ORDER Service connection for a kidney disability with end-stage renal failure is denied. Service connection for bilateral pes planus is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs