Citation Nr: 0001872 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 93-20 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a kidney disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and a friend INTRODUCTION The veteran had active military service from November 1954 to July 1956. The veteran brought a timely appeal to the Board of Veterans' Appeals (the Board) from a March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board in July 1995 and December 1997 remanded the case to the RO for further development. The case has recently been returned to the Board for appellate consideration. Transcripts of the Board and RO hearings are of record. FINDING OF FACT The claim of entitlement to service connection for a disorder of the right kidney is not supported by cognizable evidence showing the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a disorder of the right kidney is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran's service medical records show that no genitourinary system abnormality was reported on a preinduction examination in November 1954. In late November 1954 he was hospitalized at the Ft. Jackson hospital with cold symptoms reported as chills, fever, headache, backache, rhinorrhea and cough. Reportedly he had hurt his back three years previously. The record shows that he was treated symptomatically for pharyngitis and a low-grade fever that present for two days and gradually returned to normal. An X- ray of the lumbar spine was obtained and read as showing no bone or joint pathology. There was a clinical history of old injury. He was discharged to full duty in December 1954 after six hospital days. The diagnoses included pharyngitis. Complaints of back trouble in December 1954 were noted as low back soreness, intermittent for three years, that had been recurrent in the previous three weeks since starting physical training. Evaluation in January 1955 for low back pain that reportedly had been worsening since entering military service shows that the veteran reported doing fairly well since entering the Army but that he had aching at the present time. The impression was chronic low strain. The back and back pain were noted in February 1955 treatment record entries while at Ft. Jackson. An April 1955 clinical record report at another military installation noted the veteran had low back pain after doing physical training the previous day. He reportedly had a lifting injury about six weeks earlier. An X-ray request noted a back injury three years previously and low back pain since an injury in the first weeks of basic training. The clinical report noted that he still had some low back pain after lifting heavy objects. He was hospitalized in June 1955 with right lower quadrant pain of several days and a previous episode was noted. The symptoms subsided entirely the next day and he was discharged with no disease found. A contemporaneous clinical record entry mentioned possible appendicitis. An X-ray of the lumbosacral spine in July 1955 for the veteran's backache complaints showed lumbar spondylolysis. A medical evaluation in May 1956 prior to his separation for congenital bilateral spondylolysis reported the history of daily back pain since a preservice injury and more intense pain on several occasions in service but no generalized increase in the general pain level. An examiner reported pain on bending to the left but not to the right. The history reported by the veteran during an evaluation in June 1956 recalled several exacerbations of pain following lifting in basic training. A medical examination in June 1956 for separation shows a normal genitourinary system. The veteran's VA benefit application in July 1956 shows that he reported right side pains in 1955 and treatment in service in July 1955. A VA examiner in August 1956 found no genitourinary system abnormality and a normal digestive system. The diagnoses included no abdominal or gastrointestinal disease found on this examination. The veteran's complaints included recurrent right side pain since 1954. In connection with his claim in 1992 for a "service connected kidney injury" private medical treatment records since 1967 were obtained that show right lower quadrant pain complaints in 1977, 1979 and 1980 but no reference to a kidney abnormality on examination in 1984 or until a radiology study in 1987. The 1987 study was read as showing an apparent compensatory left kidney and two large calcifications in the right renal bed region. A nephrology evaluation in 1991 for recent albumiuria and solitary kidney shows the veteran reported that "one kidney disappeared". The examiner noted in the assessment that the veteran may have nephrotic protenuria possibly related to Indocin, use of aspirin or idiopathic nephrotic syndrome. The examiner's assessment was continued nephrotic syndrome, a history of right side trauma/injury in service, and that the veteran could have had vascular thrombosis, but "cannot say for sure as one reason to explain loss of the right kidney". The January 1992 cover letter from J.A.E., M.D., that accompanied the veteran's record noted that the nonfunctioning right kidney was felt to be secondary to congenital dysplasia. In April 1993, M.D.M., M.D., noted the veteran's hypertension work up revealed renal disease including a nonfunctioning right kidney that the veteran stated occurred while on active duty when he fell injuring the right flank area crossing a log course. Reportedly he was hospitalized with unexplained high fever and intravenous pyelogram or other studies of the right renal injury were not ordered by his doctors. Dr. M. opined that the failure to do so should not discredit the veteran's legitimate claim that his right kidney disease was very likely due to this accident. The veteran in hearing testimony essentially continued the argument made in his correspondence that he sustained a kidney injury in a fall during his training at Ft. Jackson. He recalled that the injury to the right side was incurred in a fall from an ice covered log and that he was hospitalized with symptoms including high fever that were treated as strep throat rather than a bruised kidney. It was also argued in testimony that the suspected appendicitis in service was actually symptomatic of the kidney disorder. The representative in 1993 argued on appeal that the congenital back disorder was a misdiagnosis of the kidney injury. VA hospitalization records received as a result of the initial Board remand refer pertinently in 1994 to atrophic right kidney and in 1995 to the veteran's history of right flank trauma in service and his statement that since then he had an atrophic right kidney. Radiology in 1995 included a CT scan report was read as showing a small atrophic right kidney and indicated that the veteran gave a history of previous injury to the right kidney. A VA examiner in 1995 reported that the veteran had a known congenital defect of the kidney and that right lower quadrant pain was of unclear significance but possibly related to the veteran's underlying urogenital dysfunction. An October 1997 clinical report noted the veteran's claim of an injury in service, which may have resulted in losing function of his right kidney. Subsequent VA hospitalization reports in 1998 mention a history of right flank trauma with atrophic right kidney in 1955 and trauma in the 1950's with atrophic right kidney resulting from the accident. In October 1997, Dr. H.D.S. reported that the veteran had old compression fracture of L5 and that history revealed a fall while on active duty that was the only "hard trauma" to the low back reported in his past history. Added to the record after the second Board remand was an April 1998 statement from M.C.P., M.D., who reported that the veteran gave a history of having fallen hurting his right side in basic training and being denied medical care until the next day when with fever he was hospitalized for a full two weeks. He related having gross hematuria on the day of the injury that apparently cleared over the next twenty-four hours. He reportedly received injected analgesics for pain and then was returned to full duty, which he resumed, but under discomfort to himself. The physician related that since that time it was apparent that he developed nephrotic syndrome and also had a history of urethral and kidney calculi. Dr. P. opined that it is very suggestive that the veteran was dealt an injury to his right kidney at the time of his fall in January 1955. He stated that the X-rays of the kidney, lower thoracic and upper lumbar areas failed to reveal any injury especially chronic or old of the kidney area being involved. He opined that from this standpoint he would feel that the injury to his back at the time in question most likely involved the kidney which would have rendered it nonfunctioning and thus would atrophy to its present state. A VA examiner in December 1998 reported that the veteran gave a history of slipping trauma and hitting on the right side of his back that dated from 1955. At that time he was hospitalized for two weeks with fever on the following day and was treated for what looked like pharyngitis. He continued to have pain in the right side and a study in 1987 found compensatory left kidney and right renal bed calcifications. A subsequent radiology study found a small, atrophic right kidney. The VA examiner also related the veteran's prostatitis and urinary tract history. The VA examiner stated that the veteran obviously had back trauma in 1955 and that during hospitalization at that time he did not have a work up that would confirm or rule out renal injury. The examiner stated that in this case it is well known that vascular injuries to the kidneys can sometimes end in atrophy of the kidney. However people also can have congenital atrophy of the kidneys. It was the examiner's opinion that the trauma the veteran sustained in some cases can end in atrophy of the kidney. The examiner stated that no documents of any work up at that time to rule out for confirm renal injury could be found nor was their an X-ray in the file prior to that injury denoting that the veteran had a normal right kidney. It was the examiner's opinion that at this time it was not totally clear whether or not the atrophy of the right kidney was due to the injury but that the injury could be the reason for that atrophy. The examiner stated that the claims file was available and reviewed at the time of the examination. Criteria Service connection may be granted for a disability resulting from personal injury or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for nephritis or calculi of the kidney although not otherwise established as incurred in service if manifested to a compensable degree within 1 year from the date of separation from service provided the rebuttable presumption provisions of § 3.307 are also satisfied. 38 C.F.R. § 3.309. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. 38 C.F.R. § 3.306. A threshold question to be answered is whether the veteran has presented evidence of a well grounded claim; that is, a claim that is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence. An allegation alone is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Three discrete types of evidence must be present in order for an appellant's claim for benefits to be well grounded: (1) There must be evidence of a current disability, usually shown by a medical diagnosis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) There must also be competent evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) There must be competent evidence of a nexus between the in-service injury or disease and the current disability. Such a nexus must be shown by medical evidence. Lathan, 7 Vet. App. at 365; Grottveit v. Brown, 5 Vet. App. 91. 93 (1993). In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); as applicable to claims of secondary service connection and aggravation, see Reiber v. Brown, 7 Vet. App. 513 (1995); Nici v. Brown, 9 Vet. App. 494 (1996), respectively. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis Although there is evidence of observation in service for back pain complaints, there is none for a potential kidney disorder. Here, the determinative issue is one of medical etiology or causation. The Board is of the opinion that within the medical evidence lies no competent evidence in support of a nexus between claimed right kidney disorder and complaints recorded in service. Continuous symptomatology since service is not shown by medical evidence. McManaway v. West, 13 Vet. App. 60 (1999). Further, the veteran is not relieved of the burden of establishing by medical evidence a nexus to service for any chronic disability of the right kidney now present and the record does not include such evidence. See Voerth v West, 13 Vet. App. 117 (1999), clarifying Savage v. Gober, 10 Vet. App. 488 (1997). The reasons and bases supporting this conclusion are discussed below. The Board in remanding the case believed it was necessary to explore the possible etiology for the veteran's right kidney findings and insure due process. The RO was very conscientious in seeking additional evidence and having the veteran examined as the Board requested. In so doing the Board may have extended to the appellant more than the customary preliminary or threshold assistance that may voluntarily be accorded a claimant by VA at the initial stages of a claim. Epps v. Gober, 126 F.3d 1464, 1469 (Fed.Cir. 1997); Sarmiento v. Brown, 7 Vet. App. 80, 85-86 (1994). See also Carbino v. Gober, 10 Vet. App. 507, 510-11 (1997). However, since the Board finds the claim not well grounded, there is no further duty to assist in development. The RO has conscientiously sought to develop the claim. Stegall v. West, 11 Vet. App. 268 (1998). The Board in remanding the case may have conveyed the impression that the claim was well grounded. The determination of well groundedness must apply the current legal standard. And, as the Board finds the claim not well grounded, there is no burden upon the Board to require further examination. Brewer v. West, 11 Vet. App. 228 (1998). See also Morton v. West, 12 Vet. App. 477 (1999). The medical opinions directed to the right kidney disorder appear to have adequately addressed the Board's concerns and allow for an informed determination at this time. The Board believes that the RO has advised the appellant of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been requested and/or obtained that would well ground either claim on the basis of a claimed motor vehicle accident injury in service or other injury in service. McKnight v. Gober, 131 F.3d 1483 (Fed.Cir.1997). As the appellant's claims for service connection is not well grounded, the doctrine of reasonable doubt has no application to his case. The Board observes that the veteran's right kidney disorder has been linked to congenital factors by some examiners. However, the Board does not find that this places the disorder within those listed under 38 C.F.R. § 3.303 for which service connection may not be established. See, e.g., VAOPGCPREC 67-90 and 82-90 (O.G.C. Prec. 67-90 and 82-90). The precedent opinions of the VA General Counsel are binding on the Board. 38 U.S.C.A. § 7104. The Board observes that the pertinent distinction between congenital or developmental "disease" and "defect" in the VA disability compensation scheme as discussed in VAOPGCPREC 82-90 (O.G.C. Prec. 82-90), has been relied on in precedent decisions. See for example Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). The Board observes that the kidney disorder has not been consistently characterized as a congenital defect but that a VA examiner in 1995 stated that a "known congenital defect" was present. Other clinicians in reporting a possible traumatic etiology have also noted a possible congenital etiology without labeling it as a defect rather than a disease. Therefore, as there is an indication from various opinions that the veteran's case may not fall within the general etiology for a congenital kidney defect, the Board will not decide the case on that basis. As a congenital defect it could not be recognized as a disability for which service connection may be granted or compensation paid. 38 C.F.R. § 3.303(c). That is, it could not be compensated on the basis of direct service connection or aggravation. The veteran contends, in essence, that he has such disability linked to trauma in service from a fall in early training. The Board must point out that the service medical records refer to the back only in the treatment history and in particular for pharyngitis in 1955. The service records are unremarkable for a fall as claimed. Regarding the back, there are several references to low back pain complaints after reinjury lifting and not associated with any fall as now claimed. What is also noteworthy is that the medical board was also unremarkable for right flank injury history or symptomatology. The VA and private treatment records do mention the back and the veteran's self reported history of symptoms regarding the right kidney that he relates as continuous since a fall in service. The impression of examiners regarding possible trauma-related right kidney atrophy obviously relied on the veteran's history and are entitled to no greater value that the uncorroborated factual premise upon which they were based. The veteran was also seen by physicians who opined that the right kidney disorder was linked to a congenital defect. It appears that this claim is controlled by the decision in Grover v. West, 12 Vet. App. 109, 112 (1999), affirming LeShore v. Brown, 8 Vet. App. 406 (1995) in holding that self reported history unenhanced by additional comment does not constitute competent medical evidence. Although the veteran has asserted the facts of kidney injury in service, the record does not show that. As noted previously the service medical records, while confirming treatment of back complaints, include no mention of any kidney disorder or injury. Further, it is only the more recent treatment records that are noteworthy for pertinent symptoms. Although right side pain was mentioned in the initial VA benefit application, there was nothing in contemporaneous records to support the current theory of a fall with right flank injury. There is also a medical board in service noting no pain in bending to the right side and the veteran's recollected back pain exacerbated by lifting. The Board must assess the weight and credibility to be given to the evidence. Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The veteran's recollection of events in service is not confirmed specifically regarding the fall and right flank injury. The favorable medical opinions appear to have been based upon assumed facts that are shown to be not correct. Struck v. Brown, 9 Vet. App. 145, 155 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As with any piece of evidence, the credibility and weight to be attached to these opinions is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The subjective history provided by the veteran in writing and in hearing testimony is found to be outweighed by contradicting contemporaneous evidence. Recent medical evidence mentions renal calculi by history but not currently and without evidence to establish calculi of the kidney in service or within the one-year presumptive period. 38 C.F.R. §§ 3.307, 3.309. The Board believes that the veteran has not produced any competent evidence supporting his contention. As a well grounded claim must be supported by evidence, not merely allegations, Tirpak, the veteran's claims for service connection are not well grounded. The absence of competent medical evidence, specifically opinion based on other than an inaccurate factual premise, linking a current right kidney disability to service on a direct basis is a critical element missing that the Board finds has not been established. ORDER Service connection for a kidney disorder is denied. Mark J. Swiatek Acting Member, Board of Veterans' Appeals