Citation Nr: 1337646	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  09-35 412	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD) or an acquired psychiatric disorder.

2. Entitlement to service connection for a heart disorder, to include as secondary to PTSD or an acquired psychiatric disorder.

3. Entitlement to service connection for renal insufficiency, claimed as a bilateral kidney disorder, to include as secondary to PTSD or an acquired psychiatric disorder.

4. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, a psychotic disorder, anxiety, and major depressive disorder.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from April 1997 to January 2002, and from January 2004 to February 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

A videoconference hearing before the undersigned Veterans Law Judge was held in January 2013.  A transcript of the hearing has been associated with the claims file.

In addition, this matter was previously remanded by the Board for further development in June 2013.  Such has been completed and this matter is returned to the Board for further consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issues of entitlement to service connection for hypertension, a heart disorder and an acquired psychiatric disability, other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, a psychotic disorder, anxiety, and major depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

The Veteran does not have a renal insufficiency, claimed as a bilateral kidney disorder, to include as secondary to PTSD or an acquired psychiatric disorder.


CONCLUSION OF LAW

The criteria for service connection for renal insufficiency, claimed as a bilateral kidney disorder, to include as secondary to PTSD or an acquired psychiatric disorder, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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.

The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

In April 2007 and July 2013, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013).  Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The July 2013 letter provided the Veteran with the notice pursuant to Dingess.

Although the Veteran was not provided notice of the effective date and disability rating regulations until after the initial adjudication, because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the Veteran.  Id. 

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Pursuant to the Board's June 2013 remand, VA treatment records have also been associated with the Veteran's electronic paperless file (Virtual VA).  The record indicates the VA has attempted to obtain, to the extent possible, all outstanding private medical records identified by the Veteran.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded VA examination in July 2013 pursuant to the Board's remand.  This opinion involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale.  Therefore, the Board finds that the examination is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim decided herein.

Additionally, the Board finds there has been substantial compliance with its June 2013 remand directives as to the claim decided herein.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013).

Furthermore, in January 2013 the Veteran testified at a Board hearing at the RO over which a Veterans Law Judge (VLJ) presided.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the Board hearing, the VLJ clarified the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms.  The Veteran was offered an opportunity to ask the undersigned questions regarding his claim.  The Board, therefore, concludes that it has fulfilled its duty under Bryant.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. The Merits of the Claim

The Veteran alleges that he experiences a bilateral kidney disorder secondary to his service-connected PTSD or other acquired psychiatric disorder.

Governing Rules and Regulations

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111  (2002); Caluza v. Brown, 7 Vet. App. 498, 505  (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).  With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such claimant shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b).  

When determining service connection, all theories of entitlement, direct and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).  As such the Board will address the Veteran's claim for service connection on both direct and secondary bases.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

Renal insufficiency, claimed as a bilateral kidney disorder

The Veteran claims that his renal insufficiency, claimed as a bilateral kidney disorder, is secondary to PTSD or an acquired psychiatric disorder. 

According to the evidence of record, renal insufficiency was noted in December 2006.  The Veteran was diagnosed with acute renal failure a few days later.  The Veteran was treated with hydration and his BUN and creatinine were followed.  It was noted that if there was no improvement, further workup could be done with consist of a renal ultrasound, a FENa, and also a quantitive urine protein.  

The Veteran underwent a VA kidney examination in July 2013 where his December 2006 acute renal failure was noted.  The Veteran stated that after his deployment in 2005 he began drinking heavily and was evaluated.  He was advised he had a type of kidney problem/renal insufficiency.  He denied undergoing evaluations or specific treatment since that time.  Upon examination and testing, the examiner stated there was "no current evidence of renal failure or renal insufficiency on examination."  The examiner explained that "labwork performed [through] the VA on [December 23, 2011] demonstrated no abnormality of the Veteran's renal function.  Lab work was ordered on day of this examination, however the Veteran did not report to the laboratory for phlebotomy."

Given the VA examiner's findings, the Veteran's claim for a bilateral kidney disorder must be denied.

In the absence of proof of present disability there can be no successful claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes).  The Court has held that the requirement for service connection that a current disability be present 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 though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In this case, the Veteran was diagnosed with acute renal failure in December 2006.  However, the examiner determined it has since resolved and there is no competent evidence showing that the Veteran has a current diagnosis, let alone acute renal failure which is secondary to his service-connected PTSD or other acquired psychiatric disorder at any point during the claim.  There is also no evidence within the record that the Veteran's acute renal failure continued into April 2007, when the Veteran submitted his initial claim.

Furthermore, the Board notes that the Veteran failed to report for phlebotomy (blood work) ordered by the VA examiner in July 2013.  As such, the examiner relied on the results from the December 2011 lab work that did not indicate the Veteran had a current disability.  The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).

Accordingly, the Veteran has not shown a current disorder for which service connection can be granted, whether on a direct basis or a secondary basis. 

The Board acknowledges the Veteran's testimony and his belief that he has a bilateral kidney disorder that is secondary to his service-connected PTSD, or an acquired psychiatric disorder.  However, while the Veteran is competent to report his symptomatology, given the nature of the claim at issue, he does not have the expertise needed to render a diagnosis or offer an opinion as to whether his claimed symptoms are attributable to a particular diagnosed disability.  Accordingly, his opinions are not probative and are outweighed by the medical evidence of record that does not show the presence of a bilateral kidney disorder. 

In sum, the evidence does not support a finding that the Veteran has a current  bilateral kidney disorder.  As the preponderance of the evidence is against the Veteran's claim, the "benefit of the doubt" rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for renal insufficiency, claimed as a bilateral kidney disorder, to include as secondary to PTSD, or other acquired psychiatric disorder, is denied.


REMAND

Unfortunately, the Board finds that further development on the issues of entitlement to service connection for hypertension, a heart disorder and an acquired psychiatric disability, other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder is warranted even though such will, regrettably, further delay an appellate decision on these issues on appeal. 

A remand by the Board confers upon on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In Stegall, the Court held that "where... the remand orders of the Board...are not complied with, the Board itself errs in failing to insure compliance."  Id.

In the June 2013 remand, the Board determined that a VA etiological opinion should be obtained to determine whether any of these disorders are related to the Veteran's now service-connected PTSD or any other acquired psychiatric disorder.  The Board instructed the examiner to "opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder, is related to active service or any incident of such service."

However, based on review of the July 2013 VA examination report, the VA examiner failed to provide the requested opinion.  Rather, the VA examiner merely discussed the current level of severity of the Veteran's PTSD. Furthermore, the examination failed to address or identify any of the Veteran's acquired psychiatric disorders other than PTSD.  As such, the Board finds this VA examination is inadequate because of the failure to provide the findings requested in the previous Board remand.  Stegall v. West, 11 Vet. App. 268 (1998).  Therefore, the Board finds that on remand, a new VA examination is necessary.

As to the claims for service connection for hypertension and a heart disorder, the Board finds that the opinions of the July 2013 VA examiner on the matter of secondary causation and aggravation are not adequate.  The examiner did not specifically comment on aggravation, noting only that there was no documentation from the Veteran or medical literature to support the Veteran's contentions.  More detailed explanations are necessary.  Therefore, further examination is necessary.

Accordingly, the case is REMANDED for the following action:

1.  Copies of updated treatment records should be obtained and added to the record.

2.  Following completion of the above, schedule the Veteran for a VA examination which addresses the nature and etiology of his acquired psychiatric disability other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder.  

Based on a review of the claims file and the results of the Veteran's examination, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD, to include a mood disorder, schizophrenia, depression, a paranoid disorder, psychotic disorder, anxiety, and major depressive disorder, is related to active service or any incident of such service. 

A complete rationale should be provided for any opinion(s) expressed.  All indicated studies should be performed.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed.  The examiner should address the Veteran's lay statements.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3.  Following completion of the development requested in paragraph 1, above, schedule the Veteran for an appropriate examination in order to determine the etiology of his hypertension and a heart disorder.  

Based on a review of the claims file and the results of the examination, the examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his hypertension and any heart disorder:  are related to active service or any incident of such service or were caused or aggravated (permanently increased in severity beyond the natural progress of the disorder) by his service-connected PTSD or other acquired psychiatric disorder.  Hypertension and a heart disorder should be discussed separately.

If secondary aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder before the onset of the aggravation.

A complete rationale should be provided for any opinion(s) expressed.  All indicated studies should be performed.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed.  The examiner should address the Veteran's lay statements.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4.  Review the examination reports to ensure that they are in complete compliance with the directives of this remand.  If any report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If any claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative, an adequate opportunity to respond must be provided, and the appeal must thereafter be returned to the Board for further appellate 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 

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action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs