Citation Nr: 18152558 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-24 079 DATE: November 23, 2018 ORDER Entitlement to service connection for kidney stones is denied. REMANDED Entitlement to a compensable rating for hypertension is remanded. FINDINGS OF FACT The Veteran’s kidney stones disability was not aggravated beyond the natural progression of the disease due to the Veteran’s service. CONCLUSIONS OF LAW The criteria to establish service connection for kidney stones are not met. 38 U.S.C. §§ 1101, 1110, 1134(a), 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1994 to November 1994, from February 2003 to January 2004, and from September 2005 to January 2009. This appeal arose to the Board of Veteran’s Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any 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 a duty to assist argument). 1. Entitlement to service connection for kidney stones The Veteran contends that he is entitled to service connection for kidney stones. Prior to service, in 1990, the Veteran suffered from one kidney stone attack, and in service, the Veteran suffered from two kidney stone attacks. 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. §§ 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). Additional laws and regulations apply when there is evidence that a disability preexisted service. A veteran is presumed to be in sound condition when entering service, except for conditions “noted” on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Only such conditions as are recorded in entrance examination reports are considered to be “noted” for purposes of the presumption of soundness. 38 C.F.R. § 3.304(b). If the disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). In determining entitlement to service connection, the Veteran receives the benefit of the doubt so that the Veteran prevails whenever the evidence in support of the claim is at least in equipoise. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). In this situation, the Veteran’s Service Treatment Records demonstrate that the Veteran suffered from kidney stones in 1990, prior to service, as the prior attack is noted several times on his service medical records. In several instances in service, the Veteran informed his medical providers that he suffered from an attack in 1990, prior to service. As such, the Board finds clear and unconvincing evidence that the Veteran’s condition existed prior to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). In service, the Veteran suffered from two documented episodes of kidney stone attacks. Since service, the Veteran has not suffered from any attacks of kidney stones. In September 2014, the Veteran received a C&P examination in which the examiner determined it was less likely than not that the Veteran’s condition was aggravated by service, as the Veteran had not suffered from any attacks since service. The examiner reasoned that it was not possible that service had aggravated his service, since his attacks had stopped since service. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection. As noted above, there is no evidence that the Veteran has suffered from any kidney stone attacks since service. As such, it stands to reason that the Veteran’s condition was not aggravated by service. The only positive evidence indicating that his disability was aggravated by service are lay statements to that effect. In this regard, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether his current disability was aggravated beyond the course of natural progression is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning aggravation of his disability, he is not competent to comment. The Board acknowledges the Veteran’s claims that his condition was aggravated by from service. Unfortunately, he is not competent to substantiate this claim, and there is no other credible evidence substantiating the claim. In sum, the Board finds that the most probative evidence demonstrates that the Veteran’s kidney stones were not aggravated beyond the natural course of progression during service. There is no competent evidence establishing that the Veteran suffered from any attacks of kidney stones after service; as such, there is no competent evidence demonstrating that his condition was aggravated. For these reasons, service connection must be denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for hypertension is remanded. The Veteran claims he is entitled to a compensable rating for hypertension. The most recent VA records, however, are from 2014, and the Veteran states his hypertension medication has changed. Pursuant to the duty to assist, VA must obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the disabilities at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Here, as the missing records are potentially relevant to the increased rating claim on appeal, the Board finds that a remand is required in order to obtain them. See 38 U.S.C. § 5103A; Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records pertaining to the treatment of the Veteran’s hypertension, and associate them with the claims file. If any such records are identified but cannot be obtained, the Veteran must be notified. (Continued on the next page)   2. Then, schedule the Veteran with a VA hypertension examination to determine the current nature and severity of his hypertension disability. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs