Citation Nr: 1338706 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-19 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a kidney condition. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to May 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for a kidney condition. The Board notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. FINDING OF FACT The preponderance of the evidence shows that the Veteran's renal condition was not present in service or until many years thereafter and is not related to service or to an injury incurred in service. CONCLUSION OF LAW Service connection for the residuals of an injury of the kidneys is not warranted. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, VA's duty to notify was satisfied by way of a letter sent to the Veteran in June 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the June 2010 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish service connection, as well as notice of the type of evidence necessary to establish an effective date. Next, VA has a duty to assist an Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The claims file contains service treatment records and private treatment records. VA provided the Veteran with a VA examination in May 2011. The Board acknowledges the Veteran's July 2011 contention found on his substantive appeal that the VA examination was inadequate because he did not "feel that the examination was thorough enough to establish the condition that I am claiming." He stated that the examiner stated that a CAT scan would be needed but later decided a CAT scan was not necessary because the results of the blood and urine tests showed effects of Lisinopril. The Veteran also took issue with the fact that the examiner was not a doctor, saying he was uncertain why he could not meet with "an MD to go over [his] case." The Board has considered the Veteran's allegations that he received an inadequate VA examination but finds that the examination was in fact adequate. The examiner reviewed the Veteran's claims file, took a history of the Veteran, conducted a physical examination and obtained laboratory results, and provided a diagnosis supported by a rationale. As such, and for the reasons discussion below, the Board concludes that findings from the May 2011 opinion are adequate for the purposes of deciding the claims on appeal. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection The Veteran seeks seeking service connection for a kidney condition. In support, he maintains that he has the disability to in-service injury. In addition, he challenges the adequacy of the May 2011 VA examination report as well as the credential of the VA examiner, who he points out was a nurse practitioner rather than a physician. 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated an Veteran for a long period of time or through a factually accurate medical history reported by an Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As mentioned above, the Veteran is seeking service connection for a kidney condition. He alleges that while in service, he sustained a jarring to his kidneys while driving an aircraft towing vehicle. Afterwards, when he urinated, the urine was like milk, completely white. Throughout the years since, he contends, he has had kidney stones, occasional chalky urine, and decreased kidney function. The Veteran's service treatment records show that in February 1990 he presented with complaints of bruised kidneys and white debris in his urine. His urinalysis showed 4+ mucus but was otherwise normal. Post-service private treatment records show that the Veteran received treatment for kidney stones in June 2003 and 2010 and presented with elevated creatinine in November 2008, August 2009, and June 2010. VA afforded the Veteran an examination in May 2011. The examiner diagnosed the Veteran with mild renal insufficiency but opined that his disability was not related to his in-service injury. The examiner provided a rationale for this finding, supported by three reasons. Firstly, after his in-service injury, the Veteran presented with no urological complaints until 2003, when he was treated for right kidney stones. He was noted in 2008 to have elevated creatine and again in 2009. He also had mildly elevated creatinine at the time of the examination. The examiner explained, however, that it is a known medical fact that lisinopril, a medication the Veteran was prescribed to control his hypertension, can raise creatinine levels and lower glomerular filtration rate (GFR). Here, the Veteran was started on lisinopril in September 2008. The first time he was noted to have an increased creatinine was in November 2008. Prior to the initiation of the lisinopril, the Veteran had normal creatinine and GFR and only after initiation of lisinopril do the records show the first elevation of creatinine and decrease in GFR. For this reason, the examiner concluded that it is at least as likely as not that the mild renal insufficiency is secondary to the initiation of lisinopril. Further, the examiner stated that there is no evidence of the medical literature to show that mucus in the urine would lead to renal insufficiency and no information that jarring of the kidneys would result in renal insufficiency eighteen years later. As such, the Veteran's current mild renal insufficiency is less likely than not related to the findings documented in the service treatment records from February 1990. The Board acknowledges the Veteran's contentions and recognizes that he is competent to report an in-service injury based on what he experienced at the time. He is also competent to report the color of his urine after the in-service incident. Jandreau at 1376-77. The Veteran is not, however, competent to conclude that his in-service injury caused his current kidney condition because the kidneys are internal organs, not capable of lay observation. Moreover, renal insufficiency is a complex medical diagnosis, requiring specialized training, experience and education, which the Veteran does not have. Layno at 470; see also Jandreau at 1377 n.4 (lay persons not competent to diagnose complex medical conditions such as cancer). As such, the Veteran's contentions are insufficient to establish that he has a kidney condition of service origin. The Board finds that the impressions offered by the May 2011 VA examiner are more probative than the Veteran's lay assertions. The findings and conclusions were provided by an examiner who has specialized training, experience and education and are well-reasoned and supported by a review of the claims file, including consideration of the Veteran's report of recurrent symptoms. The conclusions provided by the examiner are accompanied by a detailed rationale that incorporates both the Veteran's specific history and accepted medical principles. See Nieves-Rodriguez, at 304 (most of the probative value of a medical opinion comes from its reasoning). Specifically, the examiner addressed the Veteran's contentions but explained that his current kidney condition is not only unrelated to service but also, that it is due to his ingestion of lisinopril. This is why the records show an increase in his creatinine only after he began taking this medication. The examiner also explained that according to medical literature, there is no indication that jarring or mucus in urine in 1990 would lead to renal insufficiency 18 years later. For these reasons, the Board finds that the opinion of the May 2011 VA examiner is more probative than the Veteran's contentions. Further, as to the Veteran's contention that the examiner was not competent to perform the examination and that further medical testing was necessary, the Board points out that the Veteran is not competent to determine which tests were necessary to determine whether his kidney disability is related to service because that determination requires competent medical evidence that must be provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." 38 C.F.R. § 3.159(a)(1); see also Jandreau. Further, to the extent the Veteran challenges the examiner's credentials, the Board notes that there is a presumption that VA has properly chosen a person who is qualified to provide a medical opinion in a particular. See Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013), (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.Cir.2011)); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). As such, the Board concludes that VA can rely on the findings and conclusions contained in the May 2011 VA examination report and that the examination is adequate for rating purposes. Accordingly, for the reasons set forth above, the Board finds that the probative evidence of record weighs against the Veteran's claim of service connection for a kidney disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. As such, service connection for a kidney disorder must be denied. ORDER Service connection for a kidney disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs