Citation Nr: 1600339 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 11-30 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a kidney disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction presently resides with the RO in Cleveland, Ohio. In May 2015, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. In June 2015, the Veteran's representative submitted additional argument and evidence, and in October 2015 the Veteran's representative submitted a waiver of the Veteran's right to have this evidence initially considered by the RO. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2015). The Veteran's claim of service connection for a kidney disorder relates to contaminated drinking water at Marine Corps Base Camp Lejeune. On December 17, 2015, the Secretary of VA announced plans to propose expanded disability compensation eligibility for Veterans exposed to contaminated water at Camp Lejeune. The announcement, however, does not apply to this case because the Veteran's disorders of renal cysts and chronic kidney disease are not included in the list of conditions to be covered by the announced proposal. In the July 2014 rating decision, the RO denied service connection for an acquired psychiatric disorder. The Veteran filed a timely NOD in March 2015 with respect to this issue. The RO has not issued a statement of the case (SOC) with respect to the foregoing notice of disagreement. Therefore, remand is necessary for issuance of an SOC. See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A kidney disorder was not manifest during service. A kidney disorder is not attributable to service. Calculi of the kidney, cardiovascular renal disease, and nephritis were not manifested in service or within the one-year presumptive period following service. CONCLUSION OF LAW A kidney disorder was not incurred in or aggravated during service and calculi of the kidney, cardiovascular renal disease, and nephritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter or letters sent to the Veteran in August 2010. The claim was last adjudicated in October 2014. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In that regard, the Veteran's service treatment records, VA treatment records, private treatment records, hearing testimony and lay statements have been associated with the record. In February 2011, VA afforded the Veteran an examination and obtained a medical etiological opinion with respect to his kidney disorder. In November 2012, VA obtained a second opinion from a subject matter expert in Camp Lejeune water contamination claims. The VA examiners reviewed the evidence of record, considered the Veteran's history and statements, and rendered medical opinions based upon the facts of the case and the examiners' knowledge of medical principles. Therefore the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143. Service Connection Laws and Regulations 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 service. 38 U.S.C.A. §§ 1110, 1131; 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for calculi of the kidney, cardiovascular renal disease, and nephritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran claims that he has a kidney disorder as a result of exposure to toxins while he served at Marine Corps Base Camp Lejeune. VA has determined that the Veteran served at Camp Lejeune from March 1977 to September 1977. Post-service medical records indicate the Veteran has a diagnosis of chronic kidney disease with renal cysts. Proteinuria is also noted in his medical records. The Veteran underwent a February 2011 VA examination to assess whether his kidney disorder is related to service, to include water contamination at Camp Lejeune. As a result of the examination, the examiner rendered a diagnosis of renal cysts. The examiner found that there was no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's diagnosed condition of renal cysts and the Veteran's environmental exposure to contaminated water at Camp Lejeune. The examiner also reasoned that current medical evidence holds that individuals 50 or greater have a 50 percent chance of having asymptomatic renal cysts, and that renal cysts are usually harmless and asymptomatic. A second VA opinion was obtained in November 2013 from a subject matter expert in Camp Lejeune contaminated water claims. The opinion stated that renal cysts as an outcome have not been causally associated with the chemical contaminants in the water at Camp Lejeune. Moreover, per medical literature, simple renal cysts are commonly observed in normal kidneys as individuals age. They are benign, asymptomatic lesions that rarely require treatment. The examiner noted that complex renal cysts can harbor neoplasms, however, based on the available treatment records, the Veteran has not been diagnosed with a malignant renal neoplasm to date. The examiner cited possible associations between working with some chemical contaminants that were found in the water at Camp Lejeune such as "TCE" and /or "PCE" with renal cancer or certain types of end stage renal disease. However, she noted that the Veteran has not been diagnosed with renal cancer and he does not have end stage renal disease. The examiner noted that the Veteran does have some renal insufficiency with elevated creatinine, but that this has been related to his hypertension. The examiner further noted that NSAID medication use can be a contributing factor. Based on the information in the records at this time, the examiner opined that the Veteran's renal insufficiency with elevated creatinine relates to his history of high blood pressure (hypertension) so it is not caused by exposure to contaminated water at Camp Lejeune. A private medical opinion was obtained by the Veteran in June 2015. The examiner noted the Veteran's history of proteinuria in 2003 and possibly earlier and elevated blood pressures on certain occasions. The examiner diagnosed the Veteran with stage III chronic kidney disease with a history of sub-nephrotic range proteinuria, hypertension, and possible renal cysts. The examiner opined that the claim that the Veteran's renal disease was due to hypertension may or may not be correct based upon emerging evidence. With respect to whether the Camp Lejeune toxins caused the Veteran's renal disease, the examiner stated that such a conclusion is uncertain. Based on a review of the record, the Board finds that service connection for a kidney disorder is not warranted. In this regard, the VA medical opinions are highly probative evidence against a nexus between the Veteran's claimed exposure to contaminated water at Camp Lejeune and his renal cysts and chronic kidney disease. In particular, the November 2013 VA medical opinion was provided by an expert in water contamination at Camp Lejeune who reviewed the Veteran's medical history. Although the June 2015 private medical opinion attempts to cast doubt on the strength of the conclusion that hypertension caused kidney disease, nevertheless, the opinion does not relate the Veteran's renal cysts and chronic kidney disease to contaminants at Camp Lejeune, finding such a conclusion to be "uncertain." The Board notes that the Veteran claims that his high blood pressure was isolated to certain specific instances when he was under stress. He also testified that his first renal cyst was at the age of 40. The Board, however, finds that the most probative evidence is that there is insufficient medical evidence connecting the Camp Lejeune toxins to the Veteran's specific kidney disorders. The Board finds that the specific, reasoned opinions of the VA and private medical examiners are more credible and of greater probative weight than the lay assertions of the Veteran because the medical providers have greater training, knowledge, and expertise than the Veteran in discussing medical etiologies. Accordingly, a preponderance of the evidence is against a finding that the water contamination at Camp Lejeune caused the Veteran's kidney disorders. With respect to whether the Veteran's kidney disease is otherwise related to service, service treatment records are unremarkable for complaints relating to, or treatment for, a kidney disorder. The separation examination reveals a normal clinical evaluation for the genitourinary system and a normal urinalysis. The record, at best, indicates that there was possible proteinuria in the 1980's. Thus, there is no indication in the record that the Veteran was diagnosed with, treated for, or had manifestations of chronic renal disease or kidney cysts in service or until many years after service. Additionally, calculi of the kidney, cardiovascular renal disease, and nephritis were not noted during service or within one year of separation and the Veteran did not have characteristic manifestations of the disease during that time frame. 38 C.F.R. § 3.303(b). The most probative evidence of record is the service medical records, and they outweigh any lay statements of the Veteran to the contrary. Accordingly, a preponderance of the evidence is against an in-service incurrence of a kidney disorder. Therefore, service connection is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (2014); Alemany, 9 Vet. App. at 519. ORDER Service connection for a kidney disorder is denied. REMAND As discussed in the Introduction above, the Veteran filed a timely NOD to a July 2014 rating decision that denied service connection for an acquired psychiatric disorder. Because the NOD remains unprocessed, the Board finds that a remand is necessary for issuance of an SOC. See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue an SOC addressing entitlement to service connection for an acquired psychiatric disorder. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these particular issues following the issuance of the SOC unless he perfects his appeal. The Veteran 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 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