Citation Nr: 21005688 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-00 148A DATE: February 2, 2021 ORDER Service connection for a kidney disability is denied. Service connection for a sleep disorder is denied. Service connection for headaches is granted. REMANDED Service connection for a liver disability.   FINDINGS OF FACT 1. The Veteran does not have a kidney disability or a sleep disorder. 2. The Veteran’s headaches began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a kidney disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to May 1981. These matters come before the Board from a September 2010 rating decision. In July 2012, the Veteran testified at a hearing before a now-retired Veterans Law Judge (VLJ). In November 2020, the Board mailed the Veteran a letter informing him that the VLJ who had conducted his July 2012 hearing had retired but that the Veteran had a right to request another optional Board hearing before another VLJ. The letter also said that if the Veteran did not respond to the letter within 30 days, the Board would assume the Veteran did not want another hearing and proceed accordingly. A copy of the letter was provided to the Veteran’s representative. More than 30 days have passed since the letter was mailed to the Veteran and the Board has not received a response or request for another hearing. Accordingly, the Board will adjudicate the claims on appeal based on the evidence of record. In a July 2014 decision, the Board reopened a previously denied claim of service connection for a psychiatric disability and denied a temporary total rating. At that time, the Board remanded the remaining issues on appeal for further development. When the case was in remand status, in an April 2018 rating decision, the RO granted service connection for bipolar disorder with a 100 percent rating. Thus, four issues remain on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a kidney disability. The Veteran contends that he has a kidney disability that is etiologically related to his active service. See February 2011 notice of disagreement (NOD). He contends that he acquired this condition during active duty and that the condition has continued since service. Id.; see also July 2012 Board Hearing Transcript. Alternatively, he contends that he developed a kidney condition as a result of taking medication for what is now a service-connected psychiatric condition. See Informal Claim signed March 2010. As such, the question for the Board is whether the Veteran has a current kidney condition that began during service or is at least as likely as not related to or aggravated by an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current kidney disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Further, the Veteran’s claimed kidney condition does not result in functional impairment of earning capacity. Wait v. Wilkie, ___ Vet. App. ___, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609, at *12 (Vet. App. Aug. 26, 2020). The Veteran’s service treatment records (STRs) reflect that he had no kidney condition at entry into active service. The Veteran responded in the affirmative to the question of whether he had (or had ever had) a venereal disease, but an active condition was not noted during his clinical medical examination. See November 1978 Reports of Medical History and Examination. Within a month of his entry into active duty, the Veteran sought treatment for burning urinary discharge, which he attributed to venereal disease. See December 1978 STR. The Veteran was provided medical treatment for the condition, and no additional complaint of the condition was noted in his STRs for the remainder of his service. By the time of his separation, the Veteran denied any issues of painful urination, kidney stones, or blood in his urine. As he did at his enlistment, he again endorsed having (or having ever had) a venereal disease. No medical issues were identified during his clinical examination at discharge. See May 1981 Reports of Medical History and Examination. Medical treatment records from the first two decades following the Veteran’s discharge reflect that the Veteran received ongoing treatment for mental health conditions and for chronic substance abuse, but the records do not establish the presence of, or concern for, kidney disease. For example, May 1986 and May 1990 VA treatment records reflect completion of assessments of the Veteran’s health systems, but no kidney or genitourinary concerns were identified. A July 1999 assessment noted the Veteran to have a normal genitourinary system, with no concern of kidney disease, and no trouble with voiding or bladder infections. See Prison Health Services Records. The evidence of record reflects that in approximately March 2001 the Veteran reported to the Social Security Administration (SSA) that a medication he took to treat his bipolar psychiatric disorder “caused liver and kidney damage,” and that he had “urinary problems.” See Report of Continuing Disability Interview. These records do not identify the basis for the Veteran’s belief that the medication caused him kidney damage and do not identify a specifically diagnosed condition. In May 2001, as part of a state disability benefits determination, the Veteran received a Clinical Psychology Disability Evaluation. The evaluation report reflects that the Veteran felt “depressed about his physical condition, which includes difficulties with his liver of a serious nature and kidney damage.” This evaluation does not include foundational records to establish the basis for the claimed kidney condition or identify a specific diagnosis and appears to have been based solely on the Veteran’s self-report. November 2004 VA mental health treatment records reflect that the Veteran walked into a VA clinic to request a change in his mental health medication. The Veteran reported that he had used a medication (lithium, specifically) for eight years to manage his bipolar affective disorder and the medication had adversely affected his kidneys (and liver) and that he had stopped taking the medication for at least the previous three years. The evaluating psychiatrist, who diagnosed the Veteran with “alcoholism,” opined that “if [the Veteran] has liver problems it’s likely due to alcoholism not lithium.” The psychiatrist made no comment about the Veteran’s kidneys and it again appears that the psychiatrist’s statement was based solely on the Veteran’s self-report and not on diagnostic evaluation of the Veteran’s kidneys or genitourinary system. In April 2005, the Veteran received an ultrasound of his abdomen to assess symptoms of hepatitis C. The evaluating physician noted that the “echogenicity of the kidneys” was normal. Other than remarks related to the Veteran’s liver, the ultrasound was unremarkable. In July 2012, the Veteran testified before the Board that his STRs would show that he made complaints of painful urination (as well as headaches, vomiting, and upset stomach) during service. He stated the extent of the treatment he received during service was basic, such as being given aspirin, but he could not recall if additional tests were conducted for him. He testified that as of the date of the hearing he was still having problems with his urinary tract and kidneys (as well as headaches and liver problems), and that these problems were “similar to the ones [he] had at basic [training].” He testified that the problems were still ongoing and that the problems had stayed “basically the same.” In July 2018, pursuant to the Board’s remand, the Veteran received an in-person VA examination regarding his kidney claim. The VA examiner determined that the Veteran did not have (and had never had) a diagnosed kidney condition. The examiner noted that the Veteran did not have renal dysfunction and did not have kidney, ureteral or bladder calculi (urolithiasis). The examiner found no evidence of a history of recurrent symptomatic urinary tract or kidney infections, or other indications of a kidney disorder. The examiner noted laboratory studies reflected normal results of kidney function. In November 2018, the Veteran received a VA examination regarding a separate claim of entitlement to service connection for erectile dysfunction. This examiner noted the Veteran’s use of medication to treat his bipolar, but also concluded that the Veteran had no renal dysfunction and no voiding dysfunction. The Veteran’s additional VA treatment records fail to establish the existence of a kidney disorder at any point during the period on appeal. Despite receiving ongoing treatment at VA medical centers, the Veteran’s treatment records do not include diagnosis of or treatment for kidney disease or a related disorder. Finally, the Board notes that since the return of this appeal to the Board, the Veteran’s representative has offered no additional medical evidence or argument in support of the Veteran’s contention that he has a current kidney disability. See January 2019 Statement of Accredited Representative. While the Board acknowledges that the Veteran believes he has a current kidney disorder and that he believes such a condition has existed since (or due to) military service or as a result of psychiatric medication, he is not competent to provide such an opinion in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record, including the decades of medical treatment records and July 2018 VA medical examination, in finding that the Veteran does not have a current kidney disability. Without proof of a present disability there can be no claim; regardless of injuries or diseases sustained in active service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Further, the evidence of record does not suggest that the Veteran has kidney-related symptoms that result in functional impairment of his earning capacity under Wait. In sum, the Board finds the preponderance of the competent, credible, and probative evidence of record weighs against the Veteran’s claim as he has not had a diagnosable kidney disorder, or kidney symptoms resulting in functional impairment of earning capacity, at any time during or approximate to the pendency of the claim. As such, the benefit of the doubt is not applicable and service connection for a kidney disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. Service connection for a sleep disorder. The Veteran contends that he has a sleep disorder that is etiologically related to his active service. See February 2011 NOD. He contends that he acquired this condition during active duty and that the condition has continued since service. Id.; see also July 2012 Board Hearing Transcript. The Board notes at the outset of this decision that the Veteran is currently considered 100 percent disabled due to his service-connected bipolar disorder. See November 2018 rating decision and codesheet. As part of that condition, the Veteran is acknowledged to have symptoms of chronic sleep impairment. Id. VA examination of the Veteran regarding his psychiatric condition in October 2016 noted that the Veteran experienced manic episodes, which resulted in symptoms of decreased need for sleep during those episodes, including going two to three days without sleep. The examiner noted the Veteran to have chronic sleep impairment. As sleep impairment is a known symptom of the Veteran’s service-connected psychiatric condition, the question for the Board is whether the Veteran has a current distinctly identifiable sleep disorder that began during service or is at least as likely as not related to or aggravated by an in-service injury, event, or disease. The Veteran’s STRs reflect that he had no sleep-related disorder at entry into active service. See November 1978 Reports of Medical History and Examination. At the time of his separation, the Veteran reported he was in good health and took no medication. He reported no issues with sleep loss, insomnia, or sleep apnea. He specifically denied having “frequent trouble sleeping.” Clinical examination of the Veteran at this time identified no sleep disorder or symptoms. See May 1981 Reports of Medical History and Examination. As noted earlier in this decision, the Veteran testified to the Board in July 2012 that his STRs would show that he made complaints related to his claimed condition during active service and that as of the date of the hearing he was still having sleep problems that were basically the same as during service. The Veteran’s STRs are silent, however, as to any evidence of the in-service occurrence of a sleep disorder and do not include mention of sleep disturbance, trouble sleeping, or sleep apnea, as noted above. The evidence of record is silent for complaint of a sleep disorder within a year of the Veteran’s discharge. Records created decades after his discharge from active service include several references to the Veteran reporting sleep disturbances, such as the inability to sleep for “days at a time.” See November 2004 VA mental health treatment record; November 2008 private treatment record of physician C.D.M. One gastroenterology VA treatment note mentions the Veteran having “baseline insomnia.” However, when read in context of the entire record and history of the Veteran’s multiple conditions, the Board finds these references to the Veteran’s sleep to be related to his service-connected psychiatric condition and not evidence of a separate sleep disorder. In July 2018, pursuant to the Board’s remand, the Veteran received an in-person VA examination regarding his claimed sleep disorder. The VA examiner determined that the Veteran did not have (and had never had) sleep apnea. No other sleep disorder was identified by the examiner. Additionally, the Veteran’s own testimony makes clear that he also associates his trouble sleeping with his psychiatric condition. He testified in July 2012 that, at the time of the Board hearing, the symptoms of his mental health condition were worsening. Specifically, he noted that he did not sleep or could only sleep three to four hours per night and that he was prone to anxiety. He did not identify sleep disturbances outside the context of his mental health disorder. While not competent to identify a specific sleep disorder, the Board finds the Veteran competent to testify to his perceived worsening of his symptoms, including his observation that his sleep impairment symptoms increased during periods of worsening of his psychiatric symptoms. Lastly, the Board again notes that since return of the appeal to the Board, the Veteran’s representative has offered no additional evidence or argument in support of the Veteran’s contention that he has a current headache disability. See January 2019 Statement of Accredited Representative. Having fully reviewed the evidence of record, the Board finds that while the Veteran has chronic sleep impairment directly attributable to his service-connected psychiatric condition, the Veteran does not have a separately diagnosed sleep disorder distinct from that condition. Further, the Board finds that the Veteran does not have sleep disorder symptoms that result in functional impairment of earning capacity that are not already contemplated and compensated under the Veteran’s service-connected psychiatric disability. Here again, the Board finds the preponderance of the competent, credible, and probative evidence of record weighs against the Veteran’s claim. As such, the benefit of the doubt is not applicable and service connection for a sleep disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 3. Service connection for headaches. The Veteran contends that he has headaches that are etiologically related to his active service. See February 2011 NOD. The Veteran’s STRs reflect that he had no headache or migraine condition at entry into active service. See November 1978 Reports of Medical History and Examination. At the time of his separation, the Veteran specifically denied having frequent or severe headaches. Clinical examination at separation identified no concern of headaches or migraines. See May 1981 Reports of Medical History and Examination. As noted earlier in this decision, the Veteran testified to the Board in July 2012 that his STRs would show that he made complaints related to headaches during his active service and that, as of the date of the Board hearing, he was still having problems with headaches that were basically the same as during service. Review of the Veteran’s STRs include instances where the Veteran complained of headaches, among other symptoms. See e.g., STRs dated January 1979, June 1979, and October 1980. The Veteran further testified that he did not always seek medical treatment for his headaches during active service because going to “sick call” was not encouraged. Review of the Veteran’s private and government medical treatment records from the decades following his discharge from service do not provide evidence in favor of the Veteran’s claim. April 1990 VA treatment records reflect completion of assessments of the Veteran’s health systems, but no concern for headaches was noted. A July 1999 Medical History and Physical Assessment of the Veteran noted no history of headaches. See Prison Health Services Records. In July 2018, pursuant to the Board’s remand, the Veteran received an in-person VA examination regarding his claimed headache disability. The VA examiner determined that the Veteran did not have (and had never had) a diagnosed headache condition. The examining physician noted that the Veteran “denies being diagnosed or treated for headaches and denies having headaches.” In considering this examination, however, the Board notes that the examiner did not specifically address the Veteran’s lay statements of record, including his testimony before the Board, which credibly indicated that the Veteran experienced headaches during active service, and that he still experienced headaches during at least one point during the pendency of his claim. See July 2012 Board Hearing Transcript. The Board notes that lay statements may support a claim for service connection by showing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau, 492 F.3d at 1372. Further, lay testimony is competent to establish the presence of observable symptomatology where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21. Vet. App. 303 (2007). In this case, the Veteran is competent to observe symptoms of headaches, and he credibly testified to the occurrence of such symptoms during service. The Veteran’s testimony in this case is also adequate to establish the continuation of his headache symptoms following service and during the pendency of his claim. Accordingly, the Board finds the competent, credible, and probative evidence of record in approximate balance as to whether the Veteran has a current headache condition that began during his active service. Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s headaches began during active service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for headaches is warranted. REASONS FOR REMAND 1. Service connection for a liver disability. The Veteran contends that he has a liver disability that is etiologically related to his active service. See February 2011 NOD. He contends that he acquired this condition during active duty and that the condition has continued since service. Id.; see also July 2012 Board Hearing Transcript. Alternatively, he contends that he developed a liver condition as a result of taking medication for what is now a service-connected psychiatric condition. See Informal Claim signed March 2010; November 2018 rating decision. The Board notes that the Veteran has additionally attributed his post-service drug and alcohol abuse to his service-connected bipolar disorder. The Board finds that remand is warranted as the medical opinion evidence of record is inadequate. Specifically, unlike the Veteran’s kidney condition claim, there is some evidence that the Veteran had a liver condition during the period on appeal. Evidence of this condition was not adequately addressed by the VA examination of July 2018. The examiner acknowledged the Veteran’s hepatitis C diagnosis but failed to note the dates of onset and resolution of the condition and failed to address whether the condition could be related to the Veteran’s service. See February, March, and August 2017 VA Hepatitis Clinic Records. Additionally, the examiner failed to address evidence of record suggesting that the Veteran may have signs and symptoms of cirrhosis of the liver. See Id. The Board notes that where drug or alcohol use is at issue, service connection is precluded in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Service connection is not precluded if substance abuse is secondary to a service-connected disability. See 38 U.S.C. § 105; 38 C.F.R. § 3.1(n), 3.301(c); Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). As such, a new examination is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician (in-person or via the tele-system if deemed warranted) to assess the etiology of any liver disability that existed at any point during the period on appeal (i.e., from May 13, 2010 to the present). The examining clinician is asked to complete the following: (a.) Fully review the Veteran’s claims file, service medical records, post-service VA and private treatment records, and lay statements of record related to his claimed liver condition. (b.) Provide an opinion as to whether the Veteran currently has a liver disorder of any sort. Note that a condition should be considered “current” if it existed at any point during the period on appeal (between the date of the Veteran’s claim in May 2010 and the present). See e.g., VA treatment records dated February through August 2017 that show treatment for hepatitis C infection and concern for cirrhosis. The examiner should conduct all indicated tests and diagnostic studies to ascertain whether the Veteran has a current disability. (c.) For any identified liver disorder, provide an opinion as to whether the disorder is proximately due to, the result of, or aggravated by, a service-connected condition. The examiner is asked to specifically opine as to whether the Veteran’s condition can be considered secondarily related to his service-connected psychiatric condition (e.g., is it as likely as not that any medication the Veteran took as treatment for his bipolar disorder caused or aggravated his liver condition? Is it as likely as not that the Veteran self-medicated his bipolar disorder with drug or alcohol abuse that, in turn, caused or aggravated his liver disorder?). The medical basis for all opinions should be thoroughly detailed in the examiner’s opinion. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, Associate Counsel 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.