Citation Nr: 1614817 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 10-03 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and an anxiety disorder. 2. Entitlement to an effective date prior to November 19, 2012, for service connection of urolithiasis (kidney stones). REPRESENTATION Veteran represented by: James G. Fausone, Esq. ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to May 1977, and from May 1977 to November 1981. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin and a February 2013 rating decision issued by the VA RO in Louisville, Kentucky. Jurisdiction for both matters is now with the VA RO in Louisville, Kentucky, where all claims based on contaminated water at Camp Lejeune are adjudicated. In June 2013, the Veteran filed a claim for entitlement to service connection for headaches and sleep disturbances as due to contaminated water at Camp Lejeune. These issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of entitlement to service connection for a psychiatric disorder, to include major depressive disorder and an anxiety disorder, is addressed in the Remand portion of the decision below and is remanded the RO. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for post renal cancer surgery, which was received by the RO on January 4, 2008. 2. The Veteran has never filed a claim, formal or informal, for entitlement to service connection for kidney stones. 3. Reading the Veteran's claim for entitlement to service connection for post renal cancer surgery sympathetically, it also reasonably encompassed a claim for service connection for kidney stones. 4. The medical evidence of record demonstrates that the Veteran experienced kidney stones during and since active duty service. CONCLUSION OF LAW The criteria for an effective date of January 4, 2008, but no earlier, for the award of service connection for kidney stones have been met. 38 U.S.C.A. §§ 5107(b), 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). By way of history, the Veteran filed a claim for "post renal cancer surgery," which was received by the RO on January 4, 2008. The Veteran has never filed a claim, formal or informal, for entitlement to service connection for kidney stones. In a February 2013 rating decision, the RO granted service connection for renal cell carcinoma (kidney cancer), status post left nephrectomy, and assigned an effective date of January 4, 2008, the date the Veteran's claim was received. Based on the results of a November 19, 2012, VA examination, in which the examiner found that the Veteran's kidney stones were due to his kidney cancer, the RO sua sponte granted service connection for kidney stones as secondary to kidney caner, and assigned an effective date of November 19, 2012, the date the VA examiner made this determination. Following an August 2015 VA examination and an August 2015 addendum medical opinion, the RO proposed to sever service connection for kidney cancer based on the examiner's finding that the Veteran's kidney cancer was not due to his active duty service. The RO has not proposed to sever service connection for kidney stones because the August 2015 examiner provided an addendum opinion finding that the Veteran's kidney stones were directly related to his active duty service and were not secondary to his now nonservice-connected kidney cancer. As such, service connection remains in effect for the Veteran's kidney stones. The Veteran and his representative argue that the effective date for service connection for kidney stones should be the date of the Veteran's original claim for kidney cancer. Specifically, they assert that when the Veteran filed this claim, he did so based on the fact that he knew he had kidney cancer, which required removal of his kidney, and that, as a lay person and not a medical professional, he should not have been expected to have known what his diagnoses were or what additional medical disorders were due to his kidney cancer. The Veteran should not have been expected to identify a precise medical diagnosis when filing a claim for benefits. See Brokowski v. Shinseki, 23 Vet. App. 79, 86 (finding that a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis . . . rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of a disability"). This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). Furthermore, even if a claimant attempts to identify a diagnosis in his claim for benefits, his claim is not necessarily limited to benefits for that diagnosis. See Clemons, 23 Vet. App. at 5 (holding that "a self-represented layperson . . . ha[s] neither the legal or medical knowledge to narrow the universe of his claim . . . . [He does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him"). The Veteran was not represented when he filed his claim in January 2008. Accordingly, reading the Veteran's claim sympathetically, the Board finds that the original January 4, 2008, claim for service connection for post renal cell carcinoma reasonably encompassed a claim for kidney stones. Notwithstanding this determination, further analysis and discussion of the appropriate effective date is still required. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The November 19, 2012, VA examination found that the Veteran's kidney stones were related to his renal cell carcinoma. However, as discussed above, VA has proposed to sever service connection for kidney cancer, but not for kidney stones, because the VA examiner who provided the August 2015 addendum opinion found that the Veteran's kidney stones were directly related to service. Specifically, the VA examiner determined that the Veteran experienced kidney stones during active duty service and cited current medical research and literature which found that after "pass[ing] a first calcium stone, the likelihood of forming a second stone is approximately 15 percent at one year, 35 to 40 percent at five years, and 50 percent at 10 years, with men being more likely to recur than women." A November 2006 VA treatment note reflects that the Veteran had a prior history of kidney stones and that he has "been able to pass stones spontaneously in the past." The Board concludes that entitlement to service connection for kidney stones arose prior to the date VA received the Veteran's claim, on January 4, 2008. However, VA regulations clearly provide that the appropriate effective date for a grant of service connection for a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As a claim for service connection for kidney cancer was reasonably encompassed by the Veteran's claim for service connection for kidney cancer, January 4, 2008, the date VA received the Veteran's, is the proper effective date of service connection for kidney stones. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). (CONTINUED ON NEXT PAGE) ORDER An effective date of January 4, 2008, but not earlier, for the award of service connection for kidney stones is granted. REMAND The Veteran contends that the stresses he experienced performing his duties in service led to his current psychiatric disorder and that his in-service psychiatric treatment evidences a psychiatric disorder initially manifested in service. He alternatively contends that his psychiatric disorder developed due to his exposure to contaminated water at Camp Lejeune. The Veteran's service personnel records confirm he served at Camp Lejeune within the timeframe that contaminated well fields were supplying drinking water to multiple housing areas in Camp Lejeune. The service treatment records document that the Veteran was found to be psychiatrically normal on enlistment. Years later, he underwent psychiatric treatment and hospitalization. His final diagnosis prior to discharge from service was schizoid type personality disorder. Following service, various medical professionals have rendered conflicting medical opinions as to psychiatric diagnoses and the etiology of any diagnosed psychiatric disorders. The Board recently remanded this claim in February 2014 to afford the Veteran a new VA psychiatric examination, because a number of matters in the record required clarification, including: the precise diagnoses; whether there was clear and unmistakable evidence that any psychiatric disorder pre-existed entry into service and, if so, was clearly and unmistakably aggravated by service; whether a psychiatric disorder was directly related to service; and whether the Veteran's personality disorder diagnosed during service was superimposed by an additional mental disorder due to service. The VA examiner was also required to determine if any diagnosed psychiatric disorder was caused or aggravated by service in Camp Lejeune due to exposure to contaminated drinking water; that opinion rendered by the examiner appears contradictory and does not provide a rationale. Moreover, the Board's remand directives required the VA examiner to provide a complete explanation for all opinions rendered and to reconcile any opinion rendered with any conflicting opinions of record, to include any applicable opinions listed in the remand section below, however the VA examiner neglected to do so. As the VA examiner failed to fully comply with the Board's February 2014 remand directives, and as the Board is without adequate opinions to adjudicate the Veteran's claim, an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds opinions are required regarding each psychiatric disorder diagnosed since the Veteran filed his claim for service connection in January 2009. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. Regardless of the Veteran's response, the RO must obtain all outstanding VA treatment records from the Great Lakes Healthcare System from August 2014 to the present. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO must obtain a new, thorough, VA psychiatric examination by an examiner other than the June 2014 VA examiner. The entire electronic claims file, to include a complete copy of the February 2014 remand, a copy of this remand, as well as the Veteran's service treatment records and all mental health treatment records following service, must be made available to the VA mental health professional designated to examine the Veteran, and the examination report must include a discussion of the Veteran's documented history and assertions. All indicated tests and studies must be accomplished and all clinical findings must be reported in detail. Following a review of the record, the examiner must identify ALL of the Veteran's psychiatric disorders diagnosed from January 2009 to the present that meet the Axis I criteria in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and offer an opinion as to the following for EACH psychiatric disorder diagnosed since January 2009. Specifically, the examiner must provide the following opinions: (a) Did any psychiatric disorder diagnosed since January 2009 pre-exist the Veteran's entry into service? The examiner must state upon what specific evidence this finding is based. (i) If so, did the Veteran's pre-existing psychiatric disorder not undergo an increase in the underlying pathology, i.e., was not aggravated (permanently worsened) during service? The examiner must state upon what specific evidence this finding is based. If there was an increase in severity of a pre-existing psychiatric disorder during service, was that increase due to the natural progress of the disease or was it above and beyond the natural progression? The examiner must state upon what specific evidence this finding is based. (ii) If not, is any psychiatric disorder diagnosed since January 2009 casually related to any incident of service, to include the Veteran's in-service psychiatric treatment and complaints. The examiner must state upon what specific evidence this finding is based. (b) Is any psychiatric disorder diagnosed since January 2009 caused, or aggravated by, the Veteran's service at Camp Lejeune, to include as due to contaminated drinking water? The examiner must state upon what specific evidence this finding is based. In providing an opinion regarding contaminated drinking water at Camp Lejeune, the examiner must also review the following documents: (i) Notice to Examiners Evaluating Claims Based on Service at Camp Lejeune, (ii) Diseases Potentially Associated With Exposure to Contaminants Present in the Camp Lejeune Water Supply Between 1953 and 1987, (iii) Internet Websites Related to the Issue of Contaminated Water at Camp Lejeune, and (iv) Internet Websites Describing Potential Health Effects of Exposure to Chemical Contaminants Present in the Water Supply of Camp Lejeune Between 1953 and 1987. See VA Adjudication Manual, M21-1, Part IV, subpart ii, Chapter 1, Section I, Topics 14-17. (c) Whether the Veteran's personality disorder, diagnosed during service as schizoid personality disorder, was subject to an additional superimposed psychiatric disorder during service that resulted in additional disability? The examiner must state upon what specific evidence this finding is based. A complete rationale must be provided for all opinions given. The opinions must be based on examination findings, medical treatment records, and sound medical principles. In offering the requested opinions, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of any psychiatric disorder and the continuity of symptomatology since separating from active duty service. The examiner is directed to reconcile his or her opinions with any on file that may conflict, including the June 1982, May 1984, November 2009, and November 2012 VA examinations; the September 2010 letter from a VA physician; and a September 23, 2010, VA social work note). The examiner must fully articulate a sound reasoning for all conclusions made. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs