Citation Nr: 1640660 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 10-40 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability manifested by renal dysfunction. 2. Entitlement to an initial disability rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to a rating in excess of 60 percent from June 1, 2009 for the service-connected prostate cancer residuals. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2008, March 2009, and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2014 the Board remanded the case to the RO for further development and adjudicative action. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In August 2015 written correspondence received from the Veteran, and prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appellate status the issues of entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD, and entitlement to a disability rating in excess of 60 percent from June 1, 2009, for the service connected residuals of prostate cancer; additional correspondence received from the Veteran's representative in August 2015 confirms the Veteran's request. 2. The Veteran does not have a current disability manifested by renal dysfunction. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran, with regard to the issues of entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD, and entitlement to a disability rating in excess of 60 percent from June 1, 2009, for the service connected residuals of prostate cancer, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. A disability manifested by renal dysfunction was not incurred in service and is not proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims Under 38 U.S.C.A. § 7105 (West 2014), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2015). In this case, the Veteran (appellant) has withdrawn this appeal as to the issues of entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD, and entitlement to a disability rating in excess of 60 percent from June 1, 2009, for the service connected residuals of prostate cancer. See correspondence from the Veteran and from the Veteran's representative, received by VA in August 2015. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to those issues. Accordingly, the Board does not have jurisdiction to review the issues of entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD, and entitlement to a disability rating in excess of 60 percent from June 1, 2009, for the service connected residuals of prostate cancer, and they are therefore dismissed. II. Duties to Notify and Assist At the outset, VA has 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence dated in June 2009, VA notified the Veteran of the information needed to substantiate and complete his claim of service connection for renal dysfunction, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. It is not alleged that notice was less than adequate. The Veteran's service treatment records (STRs), and the Veteran's VA and private treatment records have been obtained. The Veteran has submitted lay statements in support of his claim. The matter was remanded in May 2014 to obtain any outstanding records and to afford the Veteran a VA examination in conjunction with his claim of service connection for renal dysfunction. All outstanding VA records were associated with the claims file, and the RO also attempted to obtain records from the Social Security Administration. The claims file documents several unsuccessful attempts to obtain SSA records, and also shows that the Veteran was notified of this action. In October 2014, in response to the October 2014 supplemental statement of the case, the Veteran indicated that he did not have any additional evidence to submit with regard to the appeal. The Veteran was afforded an adequate examination in June 2014. The examiner provided an adequate medical opinion based on a review of the Veteran's claims file, examination, and an interview of the Veteran. The examiner specifically pointed to objective laboratory testing to support his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). All development directed by the Board's May 2014 remand in this case appears to have been accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appellant has not identified any pertinent evidence that remains outstanding with respect to this claim. VA's duty to assist is met. III. Service Connection The Veteran seeks service connection for a disability manifested by renal dysfunction. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2015). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). 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). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2014); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection has been granted for residuals of prostate cancer, and such residuals are rated based on voiding dysfunction. Additionally, service connection for erectile function has also been granted, and the Veteran has been awarded a special monthly compensation (SMC) based on the loss of use of a creative organ. The Veteran maintains that he has a separate and distinct renal dysfunction which warrants service connection, either on a direct basis, or as secondary to the prostate cancer or his service-connected diabetes mellitus, type II. Examinations of the genitourinary system were conducted in March 2006, November 2006 and July 2007. These examinations show that the Veteran had residual urinary dysfunction and erectile dysfunction as a result of his prostate cancer; however, the Veteran denied renal stones, denied recurrent urinary tract infections, and no kidney/renal dysfunction was shown. Following the Veteran's claim for service connection for renal dysfunction, the Veteran was afforded another genitourinary examination in March 2010. He reported renal dysfunction but the examiner was unable to find any active problems with regard to the kidneys in the electronic record, and he did not find anything on examination that would suggest evidence of a current kidney disorder. The examiner concluded that the objective clinical and laboratory studies did not support a diagnosis for nephropathy. At another VA genitourinary examination in March 2011 conducted for the purpose of establishing the severity of his erectile dysfunction, the Veteran denied having any renal issues at that time. The Veteran was afforded another VA genitourinary examination in June 2014 to specifically address whether the Veteran had a current disability manifested by renal dysfunction. The examiner reviewed the claims file, and noted the Veteran's prostate cancer and resultant voiding dysfunction and erectile dysfunction. The examiner found no evidence of recurrent symptomatic urinary tract or kidney infections and indicated that the Veteran did not have any renal dysfunction. The examiner acknowledged the Veteran's assertions that his primary care doctor told him that he had kidney problems, but the examiner could find no evidence of a kidney condition or renal dysfunction at any time. The Veteran did not require dialysis, and laboratory studies revealed a normal BUN of 14, normal Creatinine level of 1.1, and a normal EGFR. In addition, urinalysis was negative for proteinuria (albumin). The examiner concluded that the Veteran's June 2014 laboratory data showed no evidence of current renal impairment; and, the examiner also noted that according to the Veteran's medical records, the Veteran's Creatinine level had been in the normal range since 2004. There is no contradictory medical evidence of record. Moreover, the Veteran's assertion that his private doctor told him that he had a kidney problem is outweighed by the medical evidence of record, which includes both private and VA records showing no such problem. The Board has considered the Veteran's contention that he has a current kidney disorder. The Board finds that the diagnosis and etiology of a kidney disorder outside the realm of common knowledge of a layperson and thus, the Veteran is competent to provide evidence on the issue of diagnosis or causation and those assertions have no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summary, the weight of the competent medical evidence of record shows no disability manifested by renal dysfunction at any time covered by this claim. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of renal dysfunction, the Board must conclude the Veteran does not currently suffer from such disability. Accordingly, service connection for renal dysfunction is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER The issue on appeal of entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD, is dismissed. The issue on appeal of entitlement to a disability rating in excess of 60 percent for the service-connected prostate cancer residuals, is dismissed. Service connection for a disability manifested by renal dysfunction is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs