Citation Nr: 1806202 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-10 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a chronic kidney disability, to include as secondary to a service-connected disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1988 to September 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2011 and June 2016 rating decisions of the Boston, Massachusetts Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in September 2012. A transcript of that hearing has been associated with the claims file. Subsequently, in a December 2016 letter, the Veteran was informed that the VLJ who held his hearing was no longer at the Board. The letter provided him with the option of another hearing. The Veteran had a subsequent hearing in July 2017 with the undersigned VLJ at which all the issues on appeal were addressed and a transcript of that hearing has been associated with the claims file. This case was remanded in November 2012 and April 2017 for additional development. The issues of an acquired psychiatric disorder and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not currently have a chronic kidney disability. CONCLUSION OF LAW The criteria for service connection for a chronic kidney disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim for service connection. The notice requirements have been met. VA's duty to notify was satisfied by letters dated March 2011 and July 2015. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159. That letter notified the Veteran of the information needed to substantiate and complete his service connection claim, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained. Although the Veteran was not afforded a VA medical examination in connection with the claim of service connection adjudicated below, the Board finds that one is not necessary because, as set forth in more detail below, the evidence does not establish that the Veteran has a current kidney disability or diagnosis. Under these circumstances, an examination or opinion is not necessary. See 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also finds that there has been substantial compliance with the prior November 2012 and April 2017 remands. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2015, the Veteran was provided further notice of how to provide evidence for his service connection claim. Additionally, VA treatment records were obtained. The Veteran has not identified any outstanding relevant records. The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary. See generally 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met and, accordingly, the Board will address the merits of the claim. Legal Criteria Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established on a secondary basis for a disability caused or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish a right to service connection for a secondary disability, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. Any increase in severity of a nonservice-connected condition that is caused by a service-connected condition (as opposed to natural progression) will also be service connected. See 38 C.F.R. § 3.310(b). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports. 38 C.F.R. § 3.159(a)(1). Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience. Lay statements are qualified to establish than an event or circumstance occurred if the statements are provided by a person who has personal knowledge of matters that can be observed and described by a non-expert. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence may be qualified to establish that an event or injury occurred during service, or that a chronic disability began during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Factual Background STRs from January 1990 show that the Veteran did not report any kidney disease. There is no treatment or notation of kidney disease while the Veteran was in service. October 2006 VA treatment notes show that the Veteran had a history of multi-substance abuse, but otherwise no known "lung, liver, heart, or kidney disease." In a rating decision dated June 2009, the Veteran was granted non-service connected pension for his disabilities, in part because of "chronic kidney disease, stage II." In the November 2011 remand, the Board requested the Veteran submit evidence that he has a kidney disability, because one was not shown by the record. To date, the Veteran has not submitted correspondence or treatment records showing a diagnosis of a kidney disability. In a hearing dated September 2012, the Veteran reported that he was not being treated for kidney disease and that his kidneys were "okay." In his July 2017 hearing, the Veteran reported that as part of his training, he interacted with "live nerve agent" and part of his responsibilities included cleaning equipment that had been contaminated with a nerve agent. He stated that he wore protective equipment but nonetheless believed he had been exposed to toxins. He also stated that he discovered the facility he had worked in was later "closed" because there had been "leakage of chemical agents and radioactive material." In July 2017, the Veteran submitted an article from a law firm detailing toxin exposure service members faced while stationed at Fort McClellan. The article noted that a private chemical company had settled a class action lawsuit with residents of the city surrounding the fort for toxins polluted by a private industrial plant. Regarding possible nerve gas agents located at the facility, the article specified that it was "unknown if there are long-term effects of nerve gasses" and that "most effects of nerve gas are immediate or manifest within eighteen hours." Regarding uranium exposure, the article stated that exposure to uranium increased a probability of cancers and that there could be "kidney damage from ingestion." Analysis The Board finds that the Veteran does not have a kidney disability or any disorder affecting his kidneys. Review of STRs, private medical records, and VA treatment records have provided no evidence of a diagnosis for any chronic kidney condition. The Veteran underwent long periods of medical treatment between 2004 and 2015. During these periods, at no time did treatment notes show that the Veteran had a history or ongoing diagnosis of any kidney disorder. In fact, the Veteran reported at his September 2012 hearing that he did not have a kidney condition and that his kidneys were "okay." In the November 2012 remand, the Board requested the Veteran submit evidence that he had a kidney disability, because one was not shown at the record at that time. To date, the Veteran has not provided any records that would indicate a kidney disease or disability. [The Board notes that the only indication that the Veteran does have a kidney condition is a June 2009 decision granting non-service connected pension, in which the RO determined that the Veteran was unable to obtain or maintain substantially gainful employment in part because of his "chronic kidney disease, stage II." However, records available before, during, and after that time include no evidence of any kidney disease, chronic or otherwise. Therefore, the Board concludes that the June 2009 decision's reference to a kidney disease was in error.] Overall, the overwhelming evidence of record shows that the Veteran does not a kidney disability. Without a current disability, the Veteran's service-connection claim for chronic kidney disability must be denied. See 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board notes that, even if the Veteran did have a kidney disability, the record does not show that any event in service would have caused a kidney disability. STRs are silent for any kidney problems and, as previously stated, there is no continuing kidney problems evident after the Veteran was in service. The Veteran stated at his July 2017 hearing that he was exposed to "nerve agents" that could have caused a kidney disability. He provided an article to support his statement, but upon further review, the article submitted does not support a finding that potential exposure to nerve agents in service caused a kidney disorder. Specifically, the article stated that it was "unknown if there are long-term effects of nerve gases" and that "most effects of nerve gas are immediate or manifest within eighteen hours." There was no discussion of the effect of nerve agents on kidney function. The Veteran highlighted the uranium portion of the article, which stated that exposure to uranium increased a probability of cancers and that there could be "kidney damage from ingestion." At no time, however, has the Veteran stated he ingested uranium during his time in service. The Veteran has also stated his belief that his acquired psychiatric disorder has caused a kidney disorder. However, in addition to the lack of evidence of a current kidney disability, the Veteran's acquired psychiatric condition is not currently service connected and, therefore, cannot support service connection on a secondary basis. Furthermore, the Veteran has not provided any evidence (beyond his own testimony) that his acquired psychiatric disorder could medically relate to a kidney disorder. The Veteran is not qualified to provide an opinion on complex medical questions, such as whether a kidney condition is caused by an acquired psychiatric condition. Jandreau, 492 F.3d at 1372. Overall, the Veteran has not established that he has a kidney disability or that events in service could have caused a kidney condition. Therefore, without evidence of a disability, an in-service event, or a link between service and a disability, the claim for a chronic kidney disability must be denied. ORDER Service connection for a chronic kidney disability (to include as secondary to an acquired psychiatric condition) is denied. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159. Specifically, (1) the RO must ensure that the Veteran has been notified about the specific criteria and alternative methods for establishing service connection for PTSD, including the additional ways to submit evidence establishing that an in-service personal assault occurred, and (2) a new examination is necessary to address the specific instances in service that could have caused the Veteran's psychiatric disorder and also address other evidence of record. The Veteran has stated his belief that he developed a psychiatric disorder because of events during service, specifically a vehicle accident and an instance of sexual assault. STRs confirm that the Veteran suffered an "accident in vehicle" in September 1988. In June 2017, the Veteran provided greater details regarding his sexual assault in service. The Board notes that this correspondence contained information regarding evidence from sources other than the Veteran's service records or evidence of behavior changes that may constitute credible supporting evidence of the military sexual assault. Patton v. West, 12 Vet. App. 272, 279-80 (1999). To date, no VA examiner has provided an opinion on whether either the vehicle accident or the sexual assault could have caused or aggravated the Veteran's psychological condition. A new VA medical opinion will need to address these specific instances. Additionally, the previous October 2015 examination ultimately found that the Veteran did "not meet criteria for a current mental disorder." According to VA treatment records, however, the Veteran has a diagnosis of bipolar disorder and a history of several years of treatment. Additionally, in correspondence dated August 2012, a staff psychiatrist from a VA hospital stated that "the Veteran's mental condition was as likely as not aggravated by his experiences in the military service." While that opinion did not provide further detail, the new medical opinion will need to consider and address both the fact that the Veteran has a diagnosis and a positive nexus opinion from a VA psychiatrist. It appears the Veteran continues to seek treatment with the VA. The AOJ should ensure that VA treatment records are updated to the present time. The issue of TDIU is directly related to the Veteran's acquired psychiatric disorder and is inextricably intertwined with that issue. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Evaluation of TDIU is contingent upon the determination of the acquired psychiatric disorder claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should provide the Veteran with the PTSD-specific notice of the criteria for establishing service connection under 38 C.F.R. § 3.304(f)(5) (or ensure that this notice has been provided in the past). 2. The AOJ should obtain for the claims file copies of the complete clinical records of all VA treatment the Veteran has received for a acquired psychiatric disorder (i.e., ensure his records of VA treatment are updated to the present time). 3. Thereafter, the AOJ should arrange for an appropriate examination to ascertain the nature and likely cause of the Veteran's acquired psychiatric disorder. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: a) Please identify by diagnosis each acquired psychiatric disorder found or shown by the record. The Board notes that the Veteran has a diagnosis of bipolar disorder and has been treated for that disability. b) Please identify the likely cause for each diagnosed acquired psychiatric disorder, including bipolar disorder. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by the vehicle accident in service, the reported incident of sexual assault, or any other incident during the Veteran's military service? The examiner should provide a complete explanation (rationale) in support of any opinions offered. The examiner should also directly consider and comment on the findings of the August 2012 positive opinion provided by the Veteran's psychiatrist. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. c) If the Veteran's diagnosed acquired psychiatric disorder was caused by, related to, or aggravated by any event in service, please comment on the effect the Veteran's acquired psychiatric disorder has on his employability and occupational ability, specifically his ability to obtain and maintain substantially gainful employment. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. After undertaking the above actions and any other necessary development, the AOJ should then review the record and readjudicate the claim. If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs