Citation Nr: 1535600 Decision Date: 08/19/15 Archive Date: 08/31/15 DOCKET NO. 12-22 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for left elbow tendinitis. 2. Entitlement to service connection for left hip bursitis. 3. Entitlement to service connection for kidney disease. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his grandson ATTORNEY FOR THE BOARD H. M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the benefits sought on appeal. In April 2013, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. The Board remanded the Veteran's claims in January 2015 for further development. The case has since been returned to the Board for adjudication. In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision. The issues of entitlement to service connection for left elbow tendinitis and left hip bursitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has kidney disease that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Kidney disease was not incurred in or aggravated by active service, nor may it be presumed to have occurred therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 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, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that 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) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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 Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in July 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. 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) (2014) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issues on appeal during the hearing and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ( stating that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced national service organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2014). In this case, the Veteran was provided a VA examination in April 2015. The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducted a physical examination. Based on the foregoing, the examiner concluded that the Veteran's kidney disease was not due to or aggravated by an event, disease, or injury incurred during active service. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion obtained in this case is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Given the April 2015 VA examination and report; and the subsequent readjudication of the claim; the Board finds that there has been substantial compliance with its January 2015 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be granted on a presumptive basis for certain chronic diseases, including kidney calculi and nephritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2014). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Factual Background and Analysis The Veteran contends that his currently diagnosed kidney disease is related to a sexually transmitted disease (STD) he had in service. A review of the service treatment records shows treatment for a STD (gonorrhea) following complaints of urethral discharge. Separation physical examination in May 1967 does not include any findings of kidney disease or symptoms indicative of kidney disease. Urinalysis was negative, and he had a normal genitourinary examination. A review of private treatment records shows that the Veteran underwent a kidney biopsy as early as 1970, and was diagnosed as having chronic glomerulonephritis of the right kidney. At the time of treatment in the early-1970s, the Veteran reported no history of urinary tract disease or injury, except a history of trauma to one kidney during a high school football game. He is currently diagnosed as having chronic renal disease. A review of VA and private treatment records show continued treatment for chronic renal disease, but none of these treating clinicians have ever linked the Veteran's renal disease to an event, injury, or disease in service. Moreover, there is no clinical finding linking his kidney disease to the in-service treatment for a STD. During the Veteran's April 2013 hearing, he again asserted that his kidney disease was due to the STD he contracted in service. He contends that he waited around two weeks or longer to get treatment for it. He was given antibiotics for treatment. The Veteran testified that in the early-1970s, when he was undergoing treatment for kidney problems, he lied and told his doctor that he injured his kidney while playing football. He stated that he was embarrassed to tell the doctor about his STD in service. In April 2015, the Veteran was afforded a VA examination for kidney conditions. The examiner indicated that she reviewed the Veteran's VA treatment records, as well as the VBMS file. The examiner diagnosed a history of chronic glomerulonephritis, with prior records noting membranoproliferative glomerulonephritis, and current kidney dysfunction. Following review of VBMS file, medical treatise evidence related to kidney disease, and following interview and examination of the Veteran, the examiner provided the following opinion with rationale: This examiner has reviewed several literature based web sites to include Medline Plus, UpToDate and MayoClinic.com and NIH. This examiner reviewed the etiology of this above kidney condition and there is a notation that the etiology is often unclear but yet the immune component discussed as well. The above literature resources do not note the prior infection (gram negative cocci as noted in service for discharge) as a cause or risk factor for this condition. Therefore, based on the current review of records and research, it is in the opinion of this examiner that the current kidney condition as noted above is less [likely] as not caused by or aggravated by his military service. There is no clinical opinion to the contrary. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for kidney disease. Initially, the Board notes that there is a remarkable lack of credible evidence of showing that any kidney disability is related to his military service. The service treatment records are negative for any kidney-related findings, and only show treatment for a STD that was resolved with antibiotics. Because nephritis was not shown to a compensable degree within one year of separation, presumptive service connection for a chronic disease is not warranted. The grant of service connection, therefore, requires competent evidence relating the diagnosis of kidney disease to the Veteran's service. Although the evidence record shows a current diagnosis of kidney disease, it does not contain reliable evidence that relates the claimed disability to any event, injury, or disease in service-included the documented STD treatment. The Board finds that the opinions expressed in the April 2015 VA examination report of significant probative value. She discussed the pertinent evidence, noting that the enlistment and separation examinations show no kidney problems and normal genitourinary examination. In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, the examiner was unable to link the Veteran's kidney disease to his military service-even after considering his in-service treatment for a STD. The Board finds the 2015 examiner's opinion to be highly probative regarding the etiology of the Veteran's kidney disease. The probative nature of the 2015 opinion is based on the fact that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a detailed history from the Veteran, reviewed medical literature related to the Veteran's claimed condition, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The Board thus finds the VA examiner's conclusion that the Veteran's kidney disease is less likely than not related to his service to be of greater probative value than the unsupported statement made by the Veteran and his spouse. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board appreciates the Veteran's lay testimony with respect to his kidney disease, including his reports of delayed treatment for the STD contracted in service, and that he lied to his treating physician about injuring one of his kidneys during a high school football game. Regardless of whether the Veteran told his physician in the early-1970s about his STD in service or not, it does not impact the outcome of this case. There is no competent or credible evidence linking the current kidney disease to the treatment for gonorrhea during service. The Board has also considered the Veteran's statements concerning the etiology of this claimed disability, and he is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, although the Board recognizes that the Veteran is sincere in his belief that his current kidney disease are related to his STD in service, he is not otherwise competent to state whether his kidney disease is related to service or aggravated thereby. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board has considered the lay testimony provided by the Veteran and his spouse; however, the objective evidence of record is against the claim. The VA examination report clearly shows no relationship between the Veteran's current kidney disease and his military service. Ultimately, the Board finds that the in-service treatment records showing no kidney or genitourinary problems during service complaints, the lack of any kidney symptoms between service separation and 1970 when he underwent a kidney biopsy, as well as the April 2015 VA opinion provided by a medical professional outweighs the lay statements offered by the Veteran and his spouse. Absent competent and reliable lay or medical evidence relating this claimed disability to service, and in consideration of the VA opinion discussed above, the Board concludes that the claim of entitlement to service connection for kidney disease must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. ORDER Service connection for a kidney disability is denied. REMAND The Board is obligated by law to ensure that the Agency of Original Jurisdiction (AOJ) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the issues must once again be remanded. The Board remanded these claims in January 2015 for further development-including a VA examination. The Board requested a new examination because the August 2011 VA examiner's opinion provided a negative nexus only because there was lack of documentation of treatment during and since service. Additionally, the August 2011 examiner indicated that his opinion may change based on the pending x-ray results. The Veteran was afforded a new VA examination in April 2015, and the VA examiner again provided a negative opinion. She, too, cited to lack of treatment for left elbow and left hip complaints during and since service as her only rationale. As such, the Board finds that the April 2015 opinion is inadequate, and a new examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claim file, including any pertinent evidence contained in the electronic files, to an appropriate examiner, for a supplemental opinions as to the nature and etiology of the Veteran's left elbow tendonitis and left hip bursitis. The examiner should note that the claims file has been reviewed. After reviewing the file, including the Veteran's specific contentions, the previous VA examination report, and the x-ray reports, the examiner should offer an opinion as to whether the Veteran's has any current disability of the left elbow or left hip, and whether any such disabilities were caused or aggravated by his military service. The examiner is asked to specifically comment on the Veteran's history of in-service parachute jumps as they relate to any current left elbow or left hip disability. For purposes of this opinion, the examiner is asked to presume that the Veteran is credible with respect to his assertions that he jammed his elbow and hip multiple times during service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. It is left to the examiner's discretion whether to reexamine the Veteran. The examiner should provide a complete rationale for any opinions provided. 2. Perform any additional development deemed necessary. 3. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs