Citation Nr: 21011648 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-32 838 DATE: March 2, 2021 ORDER Entitlement to service connection for a liver disability is denied. Entitlement to service connection for a kidney disability is denied. FINDINGS OF FACT 1. The Veteran does not have a current liver disability that manifested during, or as a result of, active military service. 2. The Veteran does not have a current kidney disability that manifested during, or as a result of, active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from August 1973 to July 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veteran Law Judge (VLJ) in November 2020. A transcript of the hearing is associated with the claims file. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting, such service, was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. 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. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). 1. Liver disability. The Veteran contends that he is entitled to service connection for a liver disability. He testified that during service he had a problem with frequent urination and that he was given medications for his liver and kidney problems. The Board finds that the evidence does not show a causal relationship (“nexus”) between the Veteran’s present liver condition and an in-service event, injury, or disease. First, for direct service connection, you must have a present disability. In September 2014, the Veteran was reported to have trauma to the liver resulting from an accident. See Medical Treatment Records – Non-Government Facility received April 2017. The Veteran testified that he was in a car that was hit by a train. See Hearing Transcript received November 2020. The Veteran testified that he had a liver condition before he was in an accident and dating back to service. However, the record does not show that the Veteran has had treatment for a specific liver condition. The Board notes that the Veteran has been diagnosed with alcohol abuse, and prolonged alcohol abuse may have adverse effects on the liver. See CAPRI received April 2017. Despite alcohol abuse, in November 2018, at a primary care visit at the VA, the Veteran was noted with normal laboratory testing. He was encouraged to limit his intake of alcohol and continue to take his medications as prescribed to control his hypertension. See CAPRI received June 2019. Next, for direct service connection, the Veteran must also have an in-service event, injury, or disease. The Veteran testified that he received medications and was placed in the hospital due to his kidneys and liver. However, the Veteran’s service treatment records do not reflect that he suffered from a liver condition during active military service. In addition, the records do not support a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. The Board emphasizes that it is aware that the Veteran has not received a VA examination following his service connection claim for his liver disability. However, there is no probative evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between the current disability and service. Therefore, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran’s disability case”). In this case, the absence of any medical evidence of treatment for the Veteran’s claimed liver disability following separation from service tends to show that the claimed disorder was not a result of his military service. As such, there is no basis for establishing service connection for the claimed disability on appeal. While the Veteran believes that his current liver disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a liver disability is a matter not capable of lay observation and requires medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his liver disability is not competent medical evidence. Based on the foregoing, the Board finds that the claimed liver disability on appeal was not manifested during, or as the result of active military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) on reasonable doubt are not applicable. The claim of entitlement to service connection for a liver disability must be denied. 2. Kidney disability The Veteran contends that he is entitled to service connection for a kidney disability. He testified that during service he had a problem with frequent urination and that he was given medications for his liver and kidney problems. The Board finds that the evidence does not show a causal relationship (“nexus”) between the Veteran’s present kidney condition and an in-service event, injury, or disease. First, for direct service connection, you must have a present disability. In November 2011, the Veteran had a renal ultrasound due to hematuria, which is blood in the urine. The study found no renal cyst, mass, calculus or hydronephrosis. The overall impression of the study was that it was normal. See Medical Treatment Record-Government Facility received April 2013. In February 2012, treatment records noted that the Veteran had some damage to his left kidney, but no history of kidney stones. The Veteran had been cystoscoped twice with nothing found. Id. In December 2011, laboratory tests suggested that the Veteran had stage two chronic kidney disease. See Medical Treatment Record-Government Facility received April 2013. Again, in April 2014, the Veteran had abnormal kidney function testing. See Medical Treatment Record-Government Facility received April 2014. The Veteran reported at his hearing that he had a recent acute incident of acute kidney failure. However, this acute incident appears to be due to dehydration and no evidence of a link to service was presented in the hearing for the acute episode. Next, for direct service connection, the Veteran must also have an in-service event, injury, or disease. The Veteran testified that he received medications and was placed in the hospital due to his kidneys and his liver. However, the Veteran’s service treatment records do not reflect that he suffered from a kidney condition during active military service. The Veteran received treatment for urethral discharge and burning with urination. The treatment records noted diagnoses of urethritis, and Gonococcal urethritis. See STR-Medical received July 2013. The Veteran received treatment for the same, including antibiotics. Id. However, the evidence does not show that the Veteran had a kidney condition, like kidney stones or chronic kidney disease. For example, the Report of Medical History at discharge stated that the Veteran had no kidney stones or blood in his urine. See STR-Medical received July 2013. As such, the service treatment records do not substantiate that the Veteran had an in-service event, injury or disease, relevant to the Veteran’s claim for service connection of a kidney condition. In addition, the records do not support a causal relationship (“nexus”) between the present disability and any in-service event, injury, or disease. The Board emphasizes that it is aware that the Veteran has not received a VA examination following his service connection claim for his kidney disability. However, there is no probative evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between the current disability and service. Therefore, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran’s disability case”). In this case, the absence of any medical evidence of treatment for the Veteran’s claimed kidney disability following separation from service tends to show that the claimed disorder was not a result of his military service. As such, there is no basis for establishing service connection for the claimed disability on appeal. While the Veteran believes that his current kidney disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a kidney disability is a matter not capable of lay observation and requires medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his kidney disability is not competent medical evidence. Based on the foregoing, the Board finds that the claimed kidney disability on appeal was not manifested during, or as the result of active military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) on reasonable doubt are not applicable. The claim of entitlement to service connection for a kidney disability must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.