Citation Nr: 1757524 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-04 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an increased rating thoracic spine degenerative changes, rated as noncompensably disabling prior to April 25, 2013 and 10 percent thereafter. 2. Entitlement to service connection for a kidney disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L Zadora, Senior Counsel INTRODUCTION The Veteran had active duty service from November 1974 to January 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a May 2013, the agency of original jurisdiction (AOJ) assigned a 10 percent rating for thoracic spine degenerative changes, effective April 25, 2013. The Veteran is presumed to seek the maximum available benefit for his thoracic spine disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In January 2016, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A hearing transcript has been associated with the record. Upon the request of the Veteran, the record was held open for an additional 60 days following the hearing to allow for the submission of additional evidence. In May 2017, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) pursuant to 38 U.S.C.A. § 5107 (a) (West 2014) and 38 C.F.R. § 20.901 (2017). That requested medical opinion was rendered in June 2017. VA provided a copy of that opinion and addendum opinion to the Veteran by correspondence dated in August 2017 and provided him the opportunity to submit additional argument and evidence. In September 2017 and October 2017, the Veteran and his representative submitted additional argument in support of his claim. FINDINGS OF FACT 1. During the January 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to an increased rating for thoracic spine degenerative changes. 2. A kidney disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to an increased rating for thoracic spine degenerative changes have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for a kidney disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdraw The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 The Veteran, through his representative, withdrew from appeal the issue of entitlement to an increased rating for thoracic spine degenerative changes during his January 2016 hearing. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Hence, there remain no allegations of error of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it must be dismissed. II. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the instant case, VA's duty to notify was satisfied by a letter sent in October 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. 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 the present case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for the equitable resolution of the issue decided herein has been obtained. Specifically, the Veteran's service treatment records, as well as VA treatment records, have been obtained and considered. VA obtained a VHA opinion in June 2017 in connection with the issue on appeal. This opinion is adequate to decide the issue of entitlement to service connection as it fully addresses whether the Veteran's kidney disorder was related to his service and considered all of the pertinent evidence of record. Additionally, the examiner provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or opinion regarding the issue of entitlement to service connection for a kidney disorder has been met. The Board notes the argument of the Veteran's representative in the October 2017 Informal Hearing Presentation that the June 2017 VHA opinion was inadequate as the urologist conceded that it was possible for stones to form over the course of several years, that the rate of stone formation was variable from patient to patient and that it was not possible to determine if the Veteran's stone was formed during or due to service. The representative also argued that the urologist conceded that the Veteran's nonspecific symptoms could have been manifestations of a kidney stone, that the Veteran had been ultimately shown to have a kidney stone and that these nonspecific symptoms were more likely attributable to a stone rather than some other unidentified condition. However, while the urologist did note that the rate of stone formation varied from patient to patient, he also noted that stone formation that more likely occurred during service would have emerged within two to three years of completion service. The urologist opined that the Veteran's negative imaging from 1994, 2001 and 2007 made it less than 50 percent likely that the stone the Veteran passed in 2007 was formed or due to his service and reasoned that an ultrasound was exceptionally good at identifying obstruction from a stone and that the lack of stones on any follow up imaging made a diagnosis of kidney stones unlikely. While the Veteran's representative argues the Veteran's "non-specific" symptoms should be attributable to a kidney stone rather some other unidentified condition, the urologist noted that there were many other diagnoses that present more commonly with these complaints. Moreover, there is no evidence or allegation that the Veteran's representative is competent to relate the Veteran's complaints of stomach or abdominal pain to kidney stones. This argument is therefore without merit. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Veteran contends that his kidney stones had their onset during his service and that they had been missed during testing conducted in 1994. During a January 2016 hearing, the Veteran testified that he was first diagnosed with kidney stones in the early 2000 when he passed the stone, that the size of the kidney stone suggested that it had its onset during service and that he experienced symptoms of kidney stones such as flank pain during service. Service treatment records are negative for complaints, treatments or diagnoses related to kidney stones. These service treatment records do reflect the Veteran's complaints of stomach or abdominal pain on multiple occasions, including in January 1988, July 1994 and July 1996. However, a July 1994 kidney ultrasound was found to be normal and a July 1994 kidney intravenous pyelogram (IVP) found no evidence of nephrolithiasis. Post-service treatment records document the Veteran's complaints of mid-abdominal pain for three days in an April 2001 Tricare treatment note. An accompanying abdominal ultrasound was found to be normal. The Veteran's complaints of frequent and painful urination were noted in April 2007. An impression of urinary retention most likely secondary to a benign prostatic hypertrophy or other etiology was made. The preponderance of the evidence is against the Veteran's claim for service connection for a kidney disorder. While the evidence of record shows that the Veteran has a currently a diagnosed kidney disorder, the probative evidence of record demonstrates that such is not related to his service. In this regard, the Board places great probative weight on the June 2017 VHA opinion that it is less likely than not (less than 50 percent probability) that his symptoms were due to kidney stones and less likely than not (less than 50 percent probability) that it was the result of his service. The urologist opined that the Veteran's extensive work-up and imaging history-including the 1994 IVP and ultrasound, 2001 and 2007 KUBs and 2011 CT (computed tomography) have all been negative for stones, making it unlikely that he had a kidney stone as the cause for his symptoms. The urologist further opined that symptoms from a stone event were caused by obstruction from the stone, that the stone moved from the kidney into the ureter and partially or completely obstructs the flow of urine from the kidney down to the bladder, that an ultrasound was exceptionally good at identifying obstruction from a stone that is symptomatic and that the lack of stones on any follow-up imaging make this diagnosis unlikely. The urologist noted that the classic symptoms of a kidney stone event included flank pain, nausea/vomiting and sometimes blood in the urine and that the presentation can vary. The urologist also noted that it was possible for stomach or abdominal pain to indicate a kidney stone but that these symptoms were nonspecific and there are many other diagnoses that present more commonly with these complaints. The urologist further opined that it was not possible to determine if the kidney stone the Veteran reportedly passed in 2007 was formed during or due to his service as the negative imaging from 1994, 2001 and 2007 would make this less than 50 percent likely. The urologist noted that the rate of stone formation was variable from patient to patient, but that typically a stone within two to three years of completion of service was probably due to a stone formation during service but beyond that time period it was less likely. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. No contrary probative medical opinion is of record. The Board notes that the Veteran has submitted two etiology opinions in support of his claim. A February 2011 Tricare treatment note from Dr. B. A, a urologist, indicates that the Veteran had a history of nephrolithiasis, that he passed a stone in 2007 and that his symptoms were suggestive of previous stones in 1994 and 1998 but that there was no objective evidence at those times. No rationale was provided for this opinion. See Nieves-Rodriguez, supra; see also Stefl, supra. This opinion is therefore being afforded little, if any, probative weight. An April 2011 opinion from Dr. L.A.H., a urologist, indicates that it was possible that the symptoms the Veteran had in 1988 and 1994 may have been secondary to nephrolithiasis. However, the speculative terminology used by this physician does not provide a sufficient basis for an award of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). As such, this opinion is being afforded little, if any, probative weight. The Veteran has contended that his kidney disorder is the result of his service and that his representative has generally alleged on his behalf that this disability was the result of his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's kidney disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current kidney symptoms and his representative is competent to describe his observations of the Veteran's symptoms, the Board accords their statements regarding the etiology of such a disorder little probative value as they are not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran and/or his representative have had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran, and/or his representative are nonprobative evidence. Therefore, a kidney disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. Consequently, service connection for such disorder is not warranted. In light of the foregoing, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for kidney disorder. As such, that doctrine is not applicable in the instant claim, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER An increased rating thoracic spine degenerative changes, rated as noncompensably disabling prior to April 25, 2013 and 10 percent thereafter, is dismissed. Service connection for a kidney disorder is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs