Citation Nr: 22017646 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-05 406 DATE: March 25, 2022 ORDER Entitlement to service connection for arthritis of the bilateral arms is denied. Entitlement to service connection for gout of the bilateral feet is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for prostate cancer with residuals is denied. Entitlement to service connection for kidney failure with end stage renal disease is denied. FINDINGS OF FACT 1. The most probative evidence fails to demonstrate that the Veteran has experienced a bilateral arm arthritis disability for VA compensation purposes during the appellate period. 2. The record fails to contain probative evidence establishing that the Veteran's current gout of the bilateral feet is etiologically or presumptively related to his active duty service. 3. The record fails to contain probative evidence establishing that the Veteran's current hypertension is etiologically or presumptively related to his active duty service. 4. The record fails to contain probative evidence establishing that the Veteran's current prostate cancer with residuals is etiologically or presumptively related to his active duty service. 5. The record fails to contain probative evidence establishing that the Veteran's current kidney failure with end stage renal disease is etiologically or presumptively related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the bilateral arms have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for gout of the bilateral feet have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for prostate cancer with residuals have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for kidney failure with end stage renal disease have not been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from October 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2016, the Veteran submitted a premature and invalid VA Form 9, Substantive Appeal, where he indicated that he would like to attend a Board videoconference hearing. When the Veteran submitted his timely and valid Substantive Appeal in February 2019, he clarified that he did not wish to attend an optional Board hearing. Accordingly, the Board shall proceed with its adjudication of the claims without a Board hearing. These matters were previously before the Board in January 2020, where they were remanded for additional evidentiary development. The Board's review of the record shows that the RO has substantially complied with the Board's prior remand directives, and neither the Veteran nor his representative have alleged otherwise. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board shall proceed with its appellate review. Neither the Veteran nor his representative has raised any issues with VA's duty to notify or VA's 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."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to the Veteran's circumstances or when a claimed disability is shown to be proximately due to, the result of, or aggravated by a service-connected disability. Initial Consideration In the January 2016 VA Form 21-0958, Notice of Disagreement, the Veteran alleged that he was exposed to Agent Orange during his service in the Panama Canal. In January 2019, the RO sent the Veteran correspondence seeking additional information regarding the time, place, and manner of his alleged exposure to herbicide agents. In January 2019, the Veteran responded and clearly stated, "I was never in Vietnam or exposed to herbicides." In the February 2019 Statement of the Case, the RO explained that the Veteran's allegations regarding in-service exposure to herbicide agents were deemed as withdrawn and no further action would be taken regarding this theory of entitlement unless the contention was reinitiated by the Veteran. As the Veteran clarified in the January 2019 statement that he was never exposed to herbicide agents and has not made any further statements regarding claimed in-service exposure to herbicide agents, the Board concludes that the Veteran was not exposed to herbicide agents during his active duty service, and no further analysis is warranted regarding this theory of entitlement. 1. Entitlement to service connection for arthritis of the bilateral arms is denied. The Veteran seeks entitlement to service connection for arthritis in the bilateral arms. Whether service connection is claimed on a direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability within the appellate period. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that section 1131 requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (applying Degmetich to section 1110); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (recent diagnoses predating filing of claim are relevant evidence in determining whether a current disability existed at time claim was filed or during its pendency). Here, the Board has fully reviewed the electronic claims file and finds no probative evidence establishing that the Veteran has been diagnosed with arthritis in the bilateral arms since initiating his claim in August 2015. McClain,21 Vet. App. at 321. While private treatment records from August 2014, December 2014, and April 2015 note "arthritis" in the Review of Systems, these treatment records predate the appellate period and are nonspecific regarding which part of the body may be impacted by arthritis. Furthermore, these references to arthritis appear to be based on the Veteran's lay reports, and there are no objective physical findings or diagnostic testing confirming the presence of arthritis in the arms. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional). The reference to "arthritis" in these medical records, without any indication of the physical location of the arthritis or any correlating medical findings, renders this information too vague and broad to satisfy the current disability element of a service connection claim. The Board has considered the holding of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2019) and Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), affirmed, No. 2021-1328, 2022 U.S. App. LEXIS 6559 (Fed. Cir. March 15, 2022), in this case. Howeverin the absence of confirmed bilateral arm arthritisthe Board finds no evidence or argument that the Veteran has experienced any arthritis-like bilateral upper extremity symptoms that have resulted in any functional impairment in earning capacity during the appellate period sufficient to qualify as a current disability for VA compensation purposes. Considering the above analysis, the Board finds that the Veteran has not experienced bilateral arm arthritis for VA compensation purposes within the appellate period. The evidence is not in approximate balance and persuasively weighs against the Veteran's claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (2021). In the absence of a current disability, the Veteran's appeal seeking entitlement to service connection for bilateral arm arthritis must be denied. 38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225. Furthermore, without a current disability, there is no basis upon which to consider entitlement to service connection under any pertinent presumptive service connection regulations. 2. Entitlement to service connection for gout of the bilateral feet is denied. 3. Entitlement to service connection for hypertension is denied. 4. Entitlement to service connection for prostate cancer with residuals is denied. The Veteran seeks entitlement to service connection for gout of the bilateral feet, hypertension, and prostate cancer with residuals. The current disability element of a service connection claim is not in dispute. VA examinations conducted in March 2020 confirmed the presence of prostate cancer with residuals, hypertension, and gout of the bilateral feet. Private medical records indicated that the Veteran's prostate cancer was in remission following seed therapy treatment in the early 2000s, but the March 2020 VA examiner stated the condition was active, the Veteran's "golden seed" implant is monitored every six months, and he has exhibited voiding dysfunction residuals. Regardless of whether the Veteran's prostate cancer is or is not active, a current disability for this condition has been established within the appellate period. Regarding in-service incurrence, the Veteran's service treatment records are entirely negative for complaints of, symptoms of, treatment for, or diagnosis of prostate cancer, hypertension, or gout of the bilateral feet. At the June 1968 service exit examination, all body systems were deemed clinically normal, and the Veteran's blood pressure was in the normal range at 115/72. In the corresponding Report of Medical History, the Veteran reported a history of or presence of foot trouble, but he did not provide any further explanation regarding this report. The Board gives this assertion little evidentiary weight in relation to his claimed gout disability, as the Veteran also affirmatively denied swollen or painful joints, arthritis, and rheumatism, all of which more closely align with symptoms of gout. In this same document, the Veteran denied all other relevant symptoms, to include high blood pressure; growths, cysts, or cancer; and frequent or painful urination. Having fully reviewed the Veteran's service department records, there is no convincing evidence that the Veteran's prostate cancer, hypertension, and/or gout in the bilateral feet were incurred during his active duty service, and the second element of a successful service connection claim has not been met. At the March 2020 VA examination, the Veteran told the VA examiner that he experienced high blood pressure during his active duty service. This contention is not supported by the Veteran's service treatment records, which contain no reference to high blood pressure. As noted above, at service exit, the Veteran affirmatively denied the presence of or a history of high blood pressure. Given its contemporaneous nature, the Board affords more probative value to the Veteran's affirmative denial of a history of or presence of high blood pressure at service discharge than statements first rendered decades later to secure VA service-connected compensation benefits. See generally Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); see Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest may affect the credibility of testimony). The Veteran's reports of in-service hypertension are not credible under the current evidentiary record. Turning to the medical nexus element of a service connection claim, the Board find no competent medical nexus evidence linking the Veteran's prostate cancer with residuals, hypertension, or gout in the bilateral feet to the Veteran's active duty service. The March 2020 VA examiner reviewed the electronic claims file, and conducted physical examinations as appropriate, but ultimately concluded that the Veteran's prostate cancer with residuals, hypertension, and gout in the bilateral feet were less likely than not related to the Veteran's active duty service. Regarding prostate cancer and gout in the bilateral feet, the VA examiner declined to link these disabilities to the Veteran's active duty service as the Veteran's service treatment records were entirely negative for diagnoses or findings suggestive of prostate cancer or gout in the bilateral feet. The VA examiner further relied upon the Veteran's own lay reports that his gout in the bilateral feet did not begin until the 1980s, well over a decade following his separation from active duty service. The Board finds the VA examiner's medical opinions to be highly probative as they are based on an accurate factual premise and are consistent with the Board's factfinding, supra, concluding there was no in-service evidence of prostate cancer or gout in the bilateral feet. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, these medical opinions are afforded significant evidentiary weight, and the medical nexus element of a service connection claim has not been satisfied regarding the Veteran's service connection claims for prostate cancer with residuals and gout of the bilateral feet. Regarding hypertension, the VA examiner declined to link this disability to the Veteran's active duty service, in part, because she found the Veteran's reports of in-service high blood pressure to be inconsistent with the Veteran's service treatment records. See Miller v. Shulkin, 32 Vet. App. 249, 259 (2020) (VA examiners play a role in assessing the medical feasibility of lay reports). This conclusion is accordant with the Board's factfinding which has assigned greater probative value to the Veteran's affirmative in-service denials of high blood pressure than his statements rendered decades later placing initial onset of hypertension during his active duty service. Next, the VA examiner noted that the Veteran only has one kidney, discussed infra, and this fact predisposed the Veteran to becoming hypertensive, although there was no evidence that this occurred during his active duty service. The Board finds the explanation provided by the March 2020 VA examiner to be fully informed by the relevant evidence of record and supported by a plausible explanatory rationale. As such, the March 2020 VA medical opinion is afforded significant evidentiary weight, and the medical nexus element has not been satisfied regarding the Veteran's service connection claim for hypertension. Hypertension, prostate cancer, and gout (arthritis) of the bilateral feet are all chronic diseases under 38 C.F.R. § 3.309(a). Therefore, the "chronic disease" presumptive service connection provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) are subject to consideration in this appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). The evidence fails to demonstrate that these disabilities developed at all during service or to a compensable degree during service or within one year of separation from the Veteran's active duty service. The Veteran's contention that his hypertension began during service has been deemed to lack credibility under the current record. Moreover, as the evidence does not show manifestations of hypertension, gout in the bilateral feet, or prostate cancer in service, or within the one-year presumptive period following the Veteran's discharge for service, a continuity of symptomatology analysis is not warranted. The Veteran lay reported that his gout in the bilateral feet began post-service in the 1980s, his prostate cancer was not diagnosed until 2000/2001, and the Veteran's post-service medical records do not show a diagnosis of hypertension until many decades after the Veteran's separation from active duty service. Accordingly, the Veteran is not entitled to presumptive service connection for hypertension, gout in the bilateral feet, or prostate cancer with residuals. In sum, the in-service incurrence and medical nexus elements of a direct service connection claim have not been satisfied, and presumptive service connection is not warranted, for the Veteran's hypertension, gout in the bilateral feet, and prostate cancer with residuals. The evidence is not in approximate balance and persuasively weighs against the Veteran's claims. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th at *11. As the requirements for service connection have not been met, the Veteran's appeal seeking entitlement to service connection for hypertension, gout in the bilateral feet, and prostate cancer with residuals is denied. 5. Entitlement to service connection for kidney failure with end stage renal disease is denied. The Veteran seeks entitlement to service connection for kidney failure with end stage renal disease. The evidence shows that the Veteran was born without a right kidney. See August 2014 kidney sonogram ("The right kidney evidently is congenitally absent."). Congenital or developmental defects (e.g., missing or supernumerary parts) are not considered diseases or injuries for VA compensation purposes, because they are definable as structural or inherent abnormalities or conditions that have been stationary in nature since birth, and thus, clearly and unmistakably preexisted service. See 38 C.F.R. § 3.303(c) ("Congenital or developmental defects...are not diseases or injuries within the meaning of applicable legislation."). These defects are not subject to improvement or deterioration, and in this case, the Veteran's right kidney could not improve or deteriorate, as it did not develop during gestation and was never in existence. See VAOPGCPREC 82-90; see also March 2020 VA medical opinion (absence of kidney since birth is a congenital defect). In March 2016, the Veteran submitted VA Form 21-4138, Statement in Support of Claim, where he alleged that he should be service connected for his kidney failure and residual damage "due to the fact that [he] was drafted into the Army in 1966 and [ ] should have been examined more closely before [he was accepted]. If [he] had known that [he] only had one (1) kidney then [he] would have been very careful with what [he] put into [his] body." See also January 2016 Notice of Disagreement and August 2016 invalid Substantive Appeal. It appears that the Veteran is attempting to argue that the absence of his right kidney coupled with the superimposed behavior of potentially ingesting harmful substances such as drugs or alcohol during service resulted in the development of his kidney failure and end stage renal disease in the left kidney. See VAOPGCPREC 82-90, p. 3 (discussion on superimposed disabilities acquired during service). This argument fails for three primary reasons. First, the Veteran's assertion that he would have changed his in-service behavior had he known about his congenitally absent right kidney is purely speculative, and the law provides that service connection may not be based on a resort to speculation or a remote possibility. 38 C.F.R. § 3.102; see e.g, Obert v. Brown, 5 Vet. App. 30, 33 (1993). Second, the Veteran's service department records are entirely absent for references to chronic alcohol or substance abuse (or kidney symptoms/disease, discussed infra) during the Veteran's active duty service, and if present during service, such information would have been documented in his service treatment records if it rose to a clinically significant level during service, as impairments impacting functional ability are typically assessed and documented in service treatment records. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded"). Moreover, to the extent that the Veteran seeks service connection based on superimposed in-service consumption of drugs or alcohol, the Board notes that any proximate disability resulting from the drinking of a beverage for its intoxicating effects or the use of drugs to enjoy their effects will be considered the result of willful misconduct, and direct service connection is not available when a disability is the result of in-service willful misconduct. See 38 C.F.R. § 3.301. Third, as a layperson, the Veteran is not competent to opine on the etiological cause of his kidney failure with end stage renal disease as he is without the medical training and expertise to opine on medically complex matters such as the cause or etiology of a specific disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no competent medical evidence of record suggesting, yet alone demonstrating, that the Veteran's development of kidney failure with end stage renal disease was the result of any ingestion of substances by the Veteran during this active duty service. Consequently, the Veteran's March 2016 lay statement is without merit and does not support the award of entitlement to service connection for kidney failure with end stage renal disease. Here, the Board has fully reviewed the Veteran's service treatment records, and they are entirely negative for any complaints, symptoms, treatment, or diagnosis of any kidney disabilities, and kidney failure with renal disease was not noted at the June 1968 service separation examination. There is no persuasive evidence that the Veteran's current kidney disability began during his active duty service, and the in-service incurrence element of a service connection claim has not been satisfied. Regarding the medical nexus element, the March 2020 VA examiner declined to link the Veteran's kidney failure with end stage renal disease to his active duty service, as the Veteran's service treatment records were entirely negative regarding the presence of kidney findings/disability. This is a factually accurate determination, as the Board has similarly identified no in-service kidney findings/disability. See Reonal, 5 Vet. App. at 461. As such, this medical opinion is afforded significant evidentiary value, and in the absence of any other competent medical nexus evidence, the medical nexus element of a service connection claim has not been satisfied. Post service treatment records have indicated that the Veteran's development of kidney failure with end stage renal disease is, in part, due to his hypertension. See December 2011 private treatment record. Unfortunately, the Veteran has not been service-connected for hypertension, see supra, and thus, a claim of service connection for kidney failure with end stage renal disease as secondary to hypertension under 38 C.F.R. § 3.310 is not a viable theory of entitlement. The Board has considered the relevant presumptive service connection provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) as kidney failure with end stage renal disease fits within the parameters of the "chronic disease" cardiovascular-renal disease. However, there is no persuasive evidence that the Veteran's kidney failure with end stage renal disease manifested, at all, yet alone to a compensable degree, during service or within one year following the Veteran's separation from active duty service. The available post-service medical records do not show the development of chronic kidney disease until many decades following the Veteran's separation from active duty service. As such, service connection on a presumptive basis is not warranted on this current evidentiary record. In sum, the in-service incurrence and medical nexus elements of a direct service connection claim have not been satisfied, and presumptive service connection is not warranted, for the Veteran's kidney failure with end stage renal disease. The evidence is not in approximate balance and persuasively weighs against the Veteran's claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th at *11. As the requirements for service connection have not been met, the Veteran's appeal seeking entitlement to service connection for kidney failure with end stage renal disease is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Galante, M., 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.