Citation Nr: 1512679 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 12-35 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bladder disability. 2. Entitlement to service connection for a kidney disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran had active service from May 1993 to October 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge via videoconference technology in May 2014; a copy of the transcript is of record. A review of the Virtual VA and Veterans Benefit Management System (VBMS) paperless claims files reveal a copy of the hearing transcript and additional VA treatment records. The issue of service connection for a bladder disability is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The in-service kidney infection was acute and resolved. 2. A kidney disability was not manifest during service and is not attributable to service. CONCLUSION OF LAW A kidney disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. Specifically, all identified service treatment records and post-service treatment records were obtained. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. To the extent that there may be VA treatment records outstanding, the Veteran testified at the May 2014 hearing that he has not had any problems with and has not sought treatment for his kidney since he separated from service. Therefore, the Board finds that there is no possibility that the records would assist the Veteran is substantiating his claim. The Veteran has not been afforded a VA examination as to the etiology of his claimed kidney disability. Such an examination was not, however, required pursuant to VA's duty to assist because, for the reasons stated below, the evidence does not indicate that the Veteran's claimed kidney disability may be associated with service. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, during the Board hearing, the undersigned explained the components of a claim for service connection, potential evidentiary defects were identified, and the record was left open to provide the Veteran an opportunity to submit additional evidence. These actions supplemented VA's compliance with the VCAA and complied with 38 C.F.R. § 3.103 (2013). The Board will therefore proceed to the merits of the appeal. Legal Principles and Analysis The Veteran seeks service connection for a kidney disability. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the benefit sought on appeal will be denied. As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disability for which he claims entitlement to service connection is the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, the service treatment records reveal that the Veteran had a urinary tract infection and prostatitis in November 2001. The Veteran testified that, at that time, he was told that his kidney was infected and "it dropped down" into his bladder. On a report of medical history from separation, in April 2002, the Veteran noted that he had a history of frequent or painful urination and kidney stones or blood in urine. As to a current kidney disability, the Veteran testified that the November 2001 incident during active duty was the only issue he had ever had with his kidney. The Board notes that's the Veteran is competent to report that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's post-service treatment records also reveal that the Veteran has not sought treatment for his kidney, only for his bladder, which will be addressed separately. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Likewise, the Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under those statutes, he must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, the Board finds that the claim must be denied as the lay and medical evidence of record establishes that the Veteran does not have a current kidney disability, and one that has resulted from a disease or injury that occurred in the line of duty. As to whether a VA examination was warranted to determine the nature and likely etiology of the claimed kidney disability, under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). As indicated above, the Veteran has testified that he does not have a current kidney disability and has not had any symptoms associated with his kidney since November 2001. Therefore, a VA examination is not warranted under the applicable precedents. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a kidney disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. ORDER Service connection for a kidney disability is denied. REMAND The Veteran contends that he has a current bladder disability that is related to a bladder infection that he had during service. The service treatment records contain documentation of a urinary tract infection/prostatitis in November 2001. On the Veteran's report of medical history in April 2002, he also noted that he had experienced frequent urination and kidney stones or blood in his urine. The Veteran's private physician submitted a statement in August 2014 and reported that the Veteran had difficulty voiding and subsequently had a cystoscopy in January 2012 that revealed a urethral stricture. He explained that the usual causes of strictures are trauma, infections, or prolonged use of a Foley catheter. To date, the Veteran has not been afforded a VA examination to determine the likely nature and etiology of the claimed bladder disability. As such, the Board finds that an examination is warranted. The Board also notes that it appears that there are VA treatment records and additional treatment records from the Veteran's private physician that are outstanding. On remand, the records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order obtain and associate with the record copies of any outstanding VA and private medical records referable to treatment rendered to the Veteran for the claimed bladder disability. The RO should specifically request authorization to obtain records from the Veteran's private physician, Dr. S.G., relating to the January 2012 cystoscopy. The RO should then also specifically request records from the Muskogee VA Medical Center from 2003 to the present. Any negative response should be documented in the claims file. 2. The RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed bladder disability. The claims file and a copy of this Remand should be made available to the examiner for review in connection with his or her evaluation. A detailed history should be elicited from the Veteran and any tests deemed necessary should be performed. The examiner should then provide the following: A) List any diagnoses related to the Veteran's bladder. B) For each diagnosis, state whether it is at least as likely as not (a 50 percent probability or greater) that the claimed bladder disability had it clinical onset during service or is otherwise related to an event or incident in service, to include his urinary tract infection/prostatitis in November 2001. A rationale should be given for each opinion rendered. The examiner should be advised that the Veteran is competent to report symptoms and treatment, and his reports must be taken into account in formulating the requested opinion. 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). 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 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs