Citation Nr: 21072120 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-03 357A DATE: December 2, 2021 ORDER The appeal as to the timeliness of a September 27, 2018 Notice of Disagreement (NOD) to the January 2017 rating decision is denied. Entitlement to service connection for kidney disease is granted. Entitlement to service connection for back disability is granted. Entitlement to service connection for left knee disability is granted. Entitlement to service connection for right knee disability is granted. Entitlement to service connection for acquired psychiatric disability is granted. FINDINGS OF FACTS 1. The Veteran's September 27, 2018 NOD was filed over a year after the January 2017 rating decision and over sixty days after a letter asking for clarification of the issues being appealed. The NOD was not timely filed. 2. Resolving reasonable doubt in the Veteran's favor, his kidney disease is etiologically related to his military service. 3. Resolving reasonable doubt in the Veteran's favor, his back disability is etiologically related to his military service. 4. Resolving reasonable doubt in the Veteran's favor, his right knee disability is etiologically related to his military service. 5. Resolving reasonable doubt in the Veteran's favor, his left knee disability is etiologically related to his military service. 6. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder had its onset in service. CONCLUSIONS OF LAW 1. The criteria for finding the NOD to the January 2017 rating decision timely have not been met. 38 U.S.C. § 7105 (a)(b); 38 C.F.R. §§ 19.24, 19.26. 2. The criteria for service connection for kidney disease are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for back disability are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for right knee disability are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for left knee disability are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for acquired psychiatric disorder are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to May 1982. The appeal regarding the timeliness of the September 2018 NOD comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 letter. The Veteran's representative filed a NOD in March 2019, which resulted in a November 2019 statement of the case (SOC). A substantive appeal was filed in January 2020. The issues regarding kidney disease, back disability, right knee disability, left knee disability, and acquired psychiatric condition come from two rating decisions issued in February and June 2017. The Veteran filed a NOD in July 2017 and two SOC were issued in January 2019 and August 2019. Substantive appeals were filed in February 2019 and August 2019, respectively. The Veteran requested a hearing, which was conducted in February 2021 and transcript of the hearing is of record. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and any other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Veteran's claim is characterized as a claim for acquired psychiatric disorder to make it clear that the claim is psychiatric disorder regardless of the specific diagnoses. 1. The appeal as to the timeliness of a September 27, 2018 NOD to the January 2017 rating decision is denied. The Veteran's representative contends that the September 27, 2018 NOD is a supplement to the January 16, 2018 NOD that was filed within a year of the January 2017 rating decision. Thus, the representative asserts that there was a timely NOD that appealed the January 2017 rating decision. To initiate an appeal of any determination by the Agency of Original Jurisdiction (AOJ), a veteran must file a properly completed NOD within one year from the date that the agency mails the notice of the decision. The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. § 20.302 (a). An NOD must be properly completed on a form prescribed by the Secretary. 38 C.F.R. § 20.201. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201(a)(4). If the claimant wishes to appeal all the issues decided by the AOJ, the form must clearly indicate that intent. Id. A complete NOD form includes (1) information to identify the claimant; (2) the claim to which the form pertains; (3) any information necessary to identify the specific nature of the disagreement if the form so requires; and (4) the claimant's signature. 38 C.F.R. § 19.24(b)(2). If the AOJ receives an NOD within one year from an adverse decision that clearly does not identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to request clarification of the claimant's intent. 38 C.F.R. § 19.26 (b). The claimant must respond to the AOJ's request for clarification within 60 days of the AOJ's clarification letter or within one year from the date of mailing of the adverse decision being appealed, whichever is later. 38 C.F.R. § 19.26 (c). If the claimant fails to provide a timely response, the previous communication from the claimant will not be considered an NOD as to any claim for which clarification was requested. 38 C.F.R. § 19.26 (c)(2). In other words, the AOJ will not consider the claimants to have appealed the decision(s) on any claim(s) as to which clarification was requested and not received. Id. In this case, the AOJ issued a rating decision granting service connection for tinnitus and denying service connection for bilateral lower extremity sciatica in January 2017. A notification to the Veteran was sent on February 1, 2017. On January 16, 2018, the Veteran's representative filed a letter explaining that she was retained to represent the Veteran. She requested a copy of the Veteran's file and explained that she did not know what stage the case was in at the time. She further indicated that the Veteran intended to appeal all issues decided within a year prior. Along with the letter, the representative filed a NOD form, where she wrote "veteran desires to appeal each and every issue in the decision." The NOD form, however, did not specifically identify the January 2017 rating decision as the decision being appealed. Thus, the NOD form was incomplete because it failed to identify the rating decision or specific issues being appealed. 38 C.F.R. § 19.24(b). Accordingly, the AOJ sent a clarification request on February 12, 2018. Thereafter, the Veteran's representative filed a letter in September 2018 clarifying that the Veteran wanted to appeal the January 2017 rating decision. Specifically, the Veteran's representative indicated that he wants to appeal the effective date for the grant of service connection for tinnitus and the denial of service connection for bilateral lower extremity sciatica. This response, however, is untimely because it was filed over 60 days after the February 2018 request for clarification and over one year after the adverse decision being appealed (the January 2017 rating decision). The Board has fully considered the Veteran's representative's claim that the September 2018 NOD is a supplement to the January 2018 NOD that did not specify the decision being appealed. However, the regulations do not allow a claimant to file a supplemental NOD. In fact, 38 C.F.R. § 19.26 (c)(2) states that if a timely response to a clarification request is not received, the AOJ will not consider the initial submission to be an NOD. The Veteran's representative asserts that she did not receive the Veteran's complete claims file until May 2018, which was after the deadline to file a response for the clarification. The Board regrets that she received the complete claims file after the expiration of the deadline. However, while the representative may not have had the complete claims file, the Veteran was sent a notification of the January 2017 rating decision. Thus, he was aware of the issues addressed in that decision. Notably, the Veteran successfully appealed a June 2017 rating decision by way of a July 2017 NOD, which demonstrates that he was aware of the requirements and process to appeal an adverse decision. Under these circumstances, the Board is bound by the law and is without authority to grant benefits on an equitable basis. Thus, the Board finds that the September 2018 NOD was untimely and there was no timely NOD filed to appeal the January 2017 rating decision. Therefore, the claim must be denied. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to service connection for kidney disease is granted. The Veteran contends that his kidney disease is related to exposure to contaminated water while he was stationed at Camp Lejeune. Under 38 C.F.R. §§ 3.307 and 3.309, there is a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. To qualify for presumptive service connection, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under 38 C.F.R. § 3.309 (f), if it manifests to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. In this case, the Veteran had active service at Camp Lejeune during the relevant period and he is presumed to have been exposed to contaminants in the water supply. 38 C.F.R. § 3.307 (a)(7)(iii). He underwent a VA examination in June 2017, where he was diagnosed with chronic renal disease and hydronephrosis. These conditions, however, are not listed under 38 C.F.R. § 3.309(f). Thus, presumptive service connection cannot be granted. Notwithstanding, service connection for a disability claimed as due to contaminated water at Camp Lejeune may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Here, the evidence is at least in equipoise as to whether the Veteran's chronic kidney disease is etiologically related to exposure to contaminated water in service. To that end, in a May 2019 VA nexus opinion, the examiner concluded that the Veteran's chronic renal insufficiency and bilateral hydronephrosis are less likely than not related to his military service. The examiner reasoned that the Veteran's age, hypertension, cardiovascular disease, smoking history, and family history of hypertension and cardiovascular disease are more likely the cause of his chronic kidney disease than his short-term exposure to contaminated water at Camp Lejeune. This opinion is adequate because it provided a clear and well-reasoned explanation. On the other hand, the Veteran's representative submitted a private nexus opinion in June 2021, where Dr. F.G. concluded that the Veteran's chronic renal disease is more likely than not caused by his exposure to contaminated water in service. Dr. F.G. explained that a comparative study of people who served at Camp Pendleton and Camp Lejeune found that those who were exposed to contaminated water at Camp Lejeune had higher renal toxicity. The Board finds this opinion adequate as it is supported by a rationale that cites to medical literature that affirms the conclusion. Thus, the record contains both positive and negative nexus opinions that are equally probative. Accordingly, the evidence of record is at least in equipoise as to whether the Veteran's kidney disease is related to service. Therefore, resolving any doubt in favor of the Veteran, the Board finds that service connection for kidney disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for back disability is granted. The Veteran asserts that service connection for his back disability is warranted. His VA treatment records reflect that the Veteran has a current disability of lumbar degenerative disc disease or thoracolumbar degenerative changes. See March 2016 VA Pain Clinic Consult Report; See also March 2019 VA Nephrology Consult Report. Thus, the first element of a service connection claim is satisfied. As to the second element, the Veteran testified that his back started hurting in service due to long marches. See hearing transcript at 7. He explained that he sought treatment in service, and he has been using over the counter medication to manage his back pain since its onset. Id. at 8. His testimony is credible and probative in establishing the in-service incident element of a service connection claim. With respect to the nexus element, the Veteran's representative submitted a private medical opinion in June 2021 from Dr. F.G, who concluded that the Veteran's lumbar degenerative disc disease is more likely than not related to his military service. Dr. F.G. explained that "[t]he mechanism for the development of [lumbar degenerative disc disease] with progression after military service is repetitive tensile loading of the intervertebral segments and disruption of collagen and elastin and aggrecan from the intervertebral disc and ligamentous structures." This opinion is adequate because Dr. F.G. provided a clear and well-reasoned explanation. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA did not provide the Veteran with a compensation and pension examination for this claim and there is no contradictory medical opinion evidence. Moreover, the Veteran's degenerative disc disease of the lumbar spine is a form of arthritis, which is a chronic disease listed under 38 C.F.R. § 3.309. The Veteran credibly testified that his pain started in service and continued after separation from service. See hearing transcript at 8. Combined with Dr. F.G.'s opinion, the Veteran's credible testimony of continuity of symptomatology is sufficient to establish the nexus element of a service connection claim. Therefore, after reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that service connection for back disability is warranted. 4. Entitlement to service connection for left knee disability is granted. 5. Entitlement to service connection for right knee disability is granted. The Veteran asserts that service connection for his bilateral knee disability is warranted. A September 2014 VA treatment record reflects that the Veteran had right knee degenerative changes. He continued to complain about right knee pain as reflected in a February and March 2016 VA treatment records. Similarly, a VA treatment record from March 2016 reflects diagnosis of left knee osteoarthritis. These treatment records reflect right and left knee disability proximate to the appeal period. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Thus, the first element of a service connection claim is satisfied for the right and left knee disabilities. During the hearing, the Veteran testified that his bilateral knee pain started in service due to long marches with heavy packs on his back. See hearing transcript at 3. His testimony is credible and sufficient to establish the second element of a service connection claim. With respect to the nexus element, Dr. F.G. provided a positive nexus opinion. He wrote "[m]echanical injury to both knees is also present contemporaneous to military service through heavy manual laboring with disruption of both the collagen elastin and ground substance of both knee joints." In general, degenerative changes and osteoarthritis are forms of arthritis, which is a chronic disease enumerated under 38 C.F.R. § 3.309. The Veteran's testimony establishes that his bilateral knee pain started in service and continued after his separation from the military. Thus, his testimony establishes continuity of symptomatology, and when viewed with Dr. F.G's opinion, it establishes that his bilateral knee disability is etiologically related to his military service. VA did not provide the Veteran with a compensation and pension examination for these claims and there is no contradictory medical opinion evidence. Therefore, after reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that service connection for right and left knee disability is warranted. 6. Entitlement to service connection for acquired psychiatric disorder is granted. The Veteran contends that service connection for his acquired psychiatric disorder is warranted. The Veteran's VA treatment records from August 2019 reflect a DSM-5 diagnosis of depressive disorder, mood disorder, posttraumatic stress disorder (PTSD), and bipolar. Therefore, the first element of a service connection claim is satisfied. The Veteran credibly testified that he had anger issues, difficulty sleeping and anxiety while in service. See hearing transcript at 15. The Veteran underwent a psychological evaluation in April 2021, where the examiner diagnosed him with specified stressor disorder and major depression. The examiner explained that the Veteran had "a length history of depressed mood and anxiety symptoms." The examiner reviewed the Veteran's military personnel records and noted that there was a decline in the Veteran's performance and behavior towards the end of his second term. The examiner wrote "[w]here [Veteran] had previously been a fine soldier with commendations and good conduct medals, towards the end of his second term of service he is described as having an attitude shift, becoming apathetic with poor motivation, poor attention to detail, and increased difficulties with impulsivity and poor judgement. These descriptions are consistent with the behavior [the Veteran] continues to display as part of his psychiatric condition." The examiner concluded that the Veteran's psychiatric condition at least as likely as not had its onset in service. The Board finds this medical opinion adequate and probative in establishing a nexus between the Veteran's current psychiatric condition and his military service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). Reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that his acquired psychiatric disorder had its onset in service. Thus, service connection for acquired psychiatric disorder is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.