Citation Nr: 1337430	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  05-12 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for a kidney disorder. 

2.  Entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Appellant and R. S. 


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel
INTRODUCTION

The Veteran served on active duty from December 1995 to November 1996. 

These matters initially came before the Board of Veterans' Appeals  (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  By that rating action, the RO, in part, denied the Veteran's claims for service connection for a kidney disorder and tinnitus.  The Veteran appealed this rating action to the Board.  Jurisdiction of the Veteran's claims file was later transferred to the RO in Los Angeles, California.  The case was remanded in June 2009 and September 2011.  

A review of the evidence of record reveals that in September 2008, the Veteran testified before a Veterans Law Judge at a travel board hearing at the Los Angeles RO. The Veterans Law Judge who conducted the hearing is, however, no longer employed by the Board.  The law requires that a Veterans Law Judge who conducts the hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.707 (2013).  The Veteran was informed of this by letter dated November 20, 2012.  He was told that the Board could make a decision on the appellate record as it stands, but that he had the opportunity to testify at another hearing should he so desire.  38 C.F.R. § 20.717 (2013).

In correspondence, received in January 2013, the Veteran requested to appear at a hearing before a Veterans Law Judge at the Los Angeles, California RO.  In July 2013, the Veteran testified before the undersigned at the above-cited RO.  A copy of the hearing transcript has been uploaded to the Veteran's Virtual VA electronic claims file and associated with the physical claims files. 

The issue of entitlement to service connection for tinnitus 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.


FINDING OF FACT

The competent and probative evidence does not show that the Veteran currently has a chronic kidney disorder.


CONCLUSION OF LAW

A chronic kidney disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

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 Veteran 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 RO, in part, notified the Veteran via a January 2004 letter of the criteria for establishing his claim for service connection for a kidney disorders, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  Then, by a post-adjudication July 2008 letter, the RO informed the Veteran of the Dingess elements with respect to this claim.  As the issue decided herein was later readjudicated in an October 2011 Supplemental Statement of the Case, any initial errors of notification to the Veteran 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). 

VA has also fulfilled its duty to assist.  The RO/AMC has obtained the Veteran's service treatment records (STRs) and VA outpatient treatment and examination records.  The Veteran has presented written arguments in various documents submitted to VA in support of the claim decided herein.  In addition, and as will be discussed in more detail, he provided testimony before a retired Veterans Law Judge and the undersigned in September 2008 and July 2013, respectively.  The Veteran's father also provided testimony at the September 2008 hearing.  Copies of the hearing transcripts have been associated with the Veteran's physical claims files and uploaded to his Virtual VA electronic claims file (July 2013 hearing transcript).  

In September 2011, the Board, in part, remanded the Veteran's claim for service connection for a kidney disability to the RO for further development.  The Board noted that pursuant to its remand directives, the RO had failed to obtain treatment records, dated from 1996 to 2000 and 1999 to 2004 from the Loma Linda, California and Alexandria, Louisiana VA Medical Centers (VAMCs), respectively.  Thereafter, via September 2011 facsimiles to these VAMCs, the RO specifically requested the above-referenced treatment records.  (See September 2011 facsimile requests to the above-cited VAMCs).  Thereafter, the RO received a CD-ROM from the Loma Linda, California VA Medical Center (VAMC) that contained copies of treatment records, dated from 1997 (duplicate copy of an October 1997 psychiatric treatment report) to 2011.  The RO printed hardcopies of these records for inclusion into the record.  The RO also received treatment records, dated from April 2004 to June 2005, from the Alexandria, Louisiana VAMC.  The RO listed the contents of the VA treatment records in its October 2011 Supplemental Statement of the Case (SSOC).  Neither the Veteran nor his representative have contended that there were documents on the CD ROM that have not been associated with the record.

In its September 2011 remand directives, the Board also instructed the RO, in part, to have the Veteran scheduled for a VA examination in conjunction with his claim for service connection for a kidney disorder.  VA examined the Veteran in July 2013.  A copy of the examination report has been associated with the Veteran's physical claims files.  The VA examiner recorded the Veteran's subjective complaints and concluded, after a physical evaluation of the Veteran, to include a urinalysis, that he did not currently have a kidney disability.   In view of the foregoing, the Board finds the July 2013 examination to be adequate for VA adjudication purposes of the service connection claim decided herein.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board is now satisfied there was substantial compliance with its September 2011 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

Finally, in July 2013, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Id.  During the hearing, the undersigned Veterans Law Judge identified one of the issues on appeal as entitlement to service connection for a kidney disorder.  (See Hearing Transcript (T.) at page (pg.) 2)).  Information was solicited regarding the onset, and post-service history and treatment for his claimed kidney disorder.  (T. at pages (pgs.) 8-10)).  Therefore, not only was the above-cited issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issue material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  The hearing discussion did not reveal any evidence that might be available that had not been submitted with respect to the issue decided herein. 

II. Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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).

Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  Calculi of the kidneys, nephritis, and cardiovascular-renal disease can be service connected on such a basis; however, the record is absent evidence of any of these conditions within a year following the Veteran's discharge from service in November 1996.

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed under 38 C.F.R. § 3.309(a), and the term "continuity of symptomatology" as an alternative method of demonstrating service connection applies only to these "chronic diseases."  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).  In any case, as the Veteran has not been diagnosed with calculi of the kidneys, nephritis, or cardiovascular-renal disease, the tenets of 3.303(b) are not for application here.

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

III. Merits Analysis

The Veteran seeks service connection for a chronic kidney disorder.  He maintains that he has had an enlarged kidney that has resulted in recurrent urinary tract infections and kidney stones as a result of having fallen several feet from the flight deck on to a metal rail while serving aboard the USS NIMITZ during military service.  (T. at pg 9).  

The Veteran's STRs show that in August 1996, he fell from the flight deck onto a metal rail.  The Veteran sustained a severe contusion to his right thigh.  Hospitalization records contemporaneous to the accident are wholly devoid of any subjective complaints or clinical findings of any kidney pathology; urinalysis tests performed during this time showed clear, yellow urine.  A November 1996 service separation examination report is negative for any clinical findings referable to the Veteran's kidneys.  A urinalysis was not performed. 

The threshold question to be answered is whether the Veteran currently has a chronic kidney disability.  If, but only if that question can be answered in the affirmative, would it be necessary to explore the question of whether it is etiologically linked to his period of active military service.

Voluminous post-service VA treatment and examination reports, dated from 1997 to 2011, have been associated with the claims files.  These reports show the Veteran complained of having blood in urine when he presented to a VA clinic in May 2004.  (See May 2004 VA treatment report).  A chronic kidney disability was not found on examination.  Id.  A July 2013 VA examiner concluded, after recording the Veteran's subjective complaints and after a physical evaluation, to include a urinalysis, that he did not currently have a kidney disability.  (See July 2013 VA nephrology examination report). 

Simply put, aside from the Veteran's complaints of having had blood in his urine, there is no competent evidence of record (medical or otherwise) showing that the he currently has a chronic kidney disability, nor is there evidence of the existence of this disability at any time since VA received the Veteran's claim for original compensation for the claimed disability in December 2003.  See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim).  To the contrary, the medical evidence of record shows that the Veteran does not have a chronic kidney disability.

"Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Clearly the competent medical evidence of record is negative for chronic kidney disability. The Board finds that the preponderance of the competent and credible evidence of record is against the Veteran's contention that he has this disability, and that service connection for a chronic kidney disability must be denied on that basis.

The Veteran has not presented any competent and credible medical evidence or medical opinion relating any current chronic kidney disorder to his military service. Thus, there is no basis to grant service connection in this instance.

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 issue in this case, kidney disorder, falls 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).  Kidney failure/damage, to include the existence of kidney stones, are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that a physical examination, and other specific findings is needed to properly assess and diagnose the disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). 

The Board readily acknowledges that Veteran is competent to report symptoms of having blood in his urine.  However, there is no indication that the Veteran is competent to diagnose a chronic or recurrent kidney disorder.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating kidney disorders.  See King v. Shinseki, 700 F.3d 1339, 1345   (Fed.Cir.2012).  The identification and classification of a kidney disorder is also a medical determination.  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

The competent medical evidence of record, namely a July 2013 VA examination report, is negative for residuals of a kidney disorder.  The Board finds that the preponderance of the competent and credible evidence of record is against the Veteran's contention that he has a kidney disorder that is related to, or had its onset during, his active period of military service. 

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim for service connection for a kidney disorder, this doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for a kidney disorder is denied. 


REMAND

Prior to appellate consideration of the claim for service connection for tinnitus, the Board finds that additional substantive development is warranted. 

Pursuant to the Board's September 2011 remand directives, the RO was instructed, in part, to schedule the Veteran for a VA audiological examination.  In July 2012, the RO sent the Veteran a letter to a Pebble Beach address and informed him of his audiological examination that was scheduled for August 18, 2012.  The Veteran failed to report for the August 2012 VA audiological examination.  

VA electronic mail correspondence, dated in September 2012, reflects that the RO personnel indicated that the Veteran had failed to report for the scheduled August 2012 VA audiological examination because of a family emergency or "[n]eeded more time has been entered into CAPRI."  This finding is in contrast to the Veteran's testimony before the undersigned in July 2013.  At that hearing, the Veteran testified that he had not received notice of the August 2012 VA audiological examination because it was sent to a completely different address than notification sent for his kidney examination.  He related that he had not resided at the Pebble Beach address for the previous four (4) years.  (T. at pgs. 3, 4).  The Board notes that according to Veterans Appeals Central Locator System (VACOLS), the Veteran' current address is in Oak Hills.  Thus, in view of the conflicting circumstances surrounding the Veteran's scheduled August 2012 VA audiological examination, in conjunction with the Veteran's willingness to report for his July 2013 VA nephrology examination, the Board finds it reasonable to expect that he will present for a re-scheduled audiological examination in conjunction with his claim for service connection for tinnitus.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the afford the Veteran a VA audiological examination to be conducted by a qualified specialist, to ascertain whether the claimed tinnitus is related to any incident of military service, to include a fall from the flight deck in August 1996 and/or exposure to acoustic trauma while serving aboard the USS Nimitz with ear protection.  The claims files, and a copy of this remand, will be reviewed by the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand.  After conducting any interviews with the Veteran or any appropriate clinical testing, the examiner shall opine as to the following question: 

Whether it is as least as likely as not (50 percent probability or greater) that claimed tinnitus was incurred in, or as a result of, the Veteran's period of active duty service?  Why or why not? 

In rendering this opinion, the examiner shall indicate consideration of any assertions from the Veteran of in-service injury consistent with the circumstances of his military service aboard the USS NIMITZ, such as having had tinnitus since service from having worked around loud aircraft equipment as a boatswain's mate with hearing protection and as a result of having fallen several feet from the flight deck onto a metal rail.  (See March 1977 VA audiological examination report; VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in December 2004; and, T. at pgs. 4, 5).

The examiner must state the medical basis or bases for his or her respective opinions in a complete written rationale.  However, if an examiner cannot respond to the inquiry without resorting to speculation, he or she should so state, and further state what specific information is lacking as to providing a non-speculative opinion. 

2.  Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim for service connection for tinnitus, considering any additional evidence added to the record.  If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto.  Thereafter, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal.  Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2013) failure to cooperate by not attending the requested VA examination may result in an adverse determination.  

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).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs