judge_norm: H N SCHWARTZ

text:
Citation Nr: 0710000
Decision Date: 04/05/07    Archive Date: 04/16/07

DOCKET NO.  04-38 985	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUE

Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for the
cause of the veteran's death.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and her daughter

ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The veteran had active service from September 1941 to
December 1945. The appellant claims as his surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Denver, Colorado.

The appellant and her daughter testified before a Veterans
Law Judge via videoconferencing technology in July 2005.  A
transcript of the hearing has been associated with the claims
folders.

The Board denied the appellant's petition to reopen her claim
in July 2006.  The appellant appealed to the Court of Appeals
for Veterans Claims (Court).  In February 2007 the Court
granted the Secretary of Veterans Affairs' motion for remand.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

As noted, the appellant testified before a Veterans Law Judge
in July 2005.  In a February 2007 letter, she was notified
that the Veterans Law Judge before whom she testified is no
longer employed by the Board.  She was provided with the
opportunity to request an additional hearing before the
Board.

In March 2007 the appellant responded that she desired a
hearing before a traveling Veterans Law Judge at the Denver
Regional Office.

Accordingly, the case is REMANDED for the following action:

The veteran is to be scheduled for a
travel board hearing at the RO before a
member of the Board.

After the veteran has been afforded an opportunity to appear
at a hearing before a member of the Board, the RO need not
take any further adjudicatory action, but
should return the claims folder to the Board for further
appellate review.

_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2006).


series: legacy

judge_norm: DEBORAH W SINGLETON

disposition: dismissed

condition: gi

disposition: granted

condition: radiculopathy

text:
Citation Nr: 0711000
Decision Date: 04/13/07    Archive Date: 04/25/07

DOCKET NO.  05-06 952	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada

THE ISSUES

1. Entitlement to service connection for chronic obstructive
lung disease with obstructive sleep apnea, to include as a
result of exposure to herbicides.

2. Entitlement to service connection for gastroesophageal
reflux disorder.

3. Entitlement to service connection for a leg condition.

4. Entitlement to a compensable disability rating for
peripheral neuropathy involving the left lower extremity.

5. Entitlement to a compensable disability rating for
peripheral neuropathy involving the right lower extremity.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Andrew Mack, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1960 to March
1964, and from April 1964 to March 1967.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Reno, Nevada that denied the veteran's claims of service
connection for chronic obstructive lung disease with
obstructive sleep apnea, gastroesophageal reflux disorder,
and a leg condition, and granted the veteran's claim of
entitlement to service connection for peripheral neuropathy
with a disability rating of 0 percent.  The veteran perfected
a timely appeal of these determinations to the Board.

In May 2006, the veteran appeared and offered testimony in
support of his claim before the undersigned member of the
Board.  The veteran's testimony on that occasion has been
transcribed and associated with his claim's file.

FINDINGS OF FACT

1. During the May 2006 hearing before the Board, and prior to
the promulgation of a decision in the appeal, the veteran
withdrew on the record his substantive appeal concerning the
issue of entitlement to service connection for chronic
obstructive lung disease with obstructive sleep apnea, to
include as a result of exposure to herbicides.

2. During the May 2006 hearing before the Board, and prior to
the promulgation of a decision in the appeal, the veteran
withdrew on the record his substantive appeal concerning the
issue of entitlement to service connection for
gastroesophageal reflux disorder.

3. During the May 2006 hearing before the Board, and prior to
the promulgation of a decision in the appeal, the veteran
withdrew on the record his substantive appeal concerning the
issue of entitlement to service connection for a leg
condition.

4. The veteran's peripheral neuropathy involving the left
lower extremity is productive of mild incomplete paralysis.

5. The veteran's peripheral neuropathy involving the right
lower extremity is productive of mild incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of a Substantive Appeal by the
appellant (or his or her representative) concerning the issue
of entitlement to service connection for chronic obstructive
lung disease with obstructive sleep apnea, to include as a
result of exposure to herbicides have been met.  38 U.S.C.A.
� 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. �� 20.202, 20.204
(2006).

2. The criteria for withdrawal of a Substantive Appeal by the
appellant (or his or her representative) concerning the issue
of entitlement to service connection for gastroesophageal
reflux disorder have been met.  38 U.S.C.A. � 7105(b)(2),
(d)(5) (West 2002); 38 C.F.R. �� 20.202, 20.204 (2006).

3. The criteria for withdrawal of a Substantive Appeal by the
appellant (or his or her representative) concerning the issue
of entitlement to service connection for a leg condition have
been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2002); 38
C.F.R. �� 20.202, 20.204 (2006).

4. The criteria for a disability rating of 10 percent, but no
more, for peripheral neuropathy involving the left lower
extremity have been met.  38 U.S.C.A. � 1155 (West 2002);
38 C.F.R. � 4.1, 4.3, 4.7, 4.124, 4.124a, Diagnostic Codes
8521, 8721 (2006).

5. The criteria for a disability rating of 10 percent, but no
more, for peripheral neuropathy involving the right lower
extremity have been met.  38 U.S.C.A. � 1155 (West 2002);
38 C.F.R. � 4.1, 4.3, 4.7, 4.124, 4.124a, Diagnostic Codes
8521, 8721 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Withdrawn Issues

Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed.  A Substantive Appeal may be
withdrawn on the record at a hearing or in writing at any
time before the Board promulgates a decision.  38 C.F.R.
� 20.202, 20.204.  Withdrawal may be made by the appellant or
by his or her authorized representative.  38 C.F.R. � 20.204.
Here, the appellant withdrew on the record at the May 2006
hearing his Substantive Appeal concerning the claims of
service connection for chronic obstructive lung disease with
obstructive sleep apnea, to include as a result of exposure
to herbicides, gastroesophageal reflux disorder, and a leg
condition.  Hence, there remain no allegations of errors of
fact or law for appellate consideration regarding these
claims.  Thus, the Board does not have jurisdiction to review
these claims, and they are dismissed.

II. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. �� 5103, 5103A, and implemented at
38 C.F.R. � 3.159, amended VA's duties to notify and assist a
claimant in developing the information and evidence necessary
to substantiate a claim.

Under 38 U.S.C.A. � 5103, VA must notify the claimant of any
information or evidence not of record that is necessary to
substantiate the claim, as well as what parts of that
information or evidence VA will seek to provide, and what
parts VA expects the claimant to provide.  The notification
must also include the request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.  38 C.F.R. � 3.159(b) (2006).  VA must provide such
notice to a claimant prior to an initial unfavorable decision
on a claim for VA benefits by the agency of original
jurisdiction (AOJ), even if the adjudication occurred prior
to the enactment of the VCAA.  See Pelegrini v. Principi,
18 Vet. App. 112, 119-120 (2004).

In this case, VA satisfied its duty to notify by means of an
October 2005 letter from the AOJ to the veteran, which
informed him of what evidence was required to substantiate
his claim and of his and the VA's respective duties for
obtaining evidence.  The veteran was also asked to submit any
relevant evidence and/or information in his possession to the
AOJ.

After this VCAA-compliant notice was sent to the veteran, the
claim was readjudicated.  Thus, the Board determines that any
defect concerning the timing of the VCAA notice requirements
was harmless and resulted in no risk of prejudice to the
veteran.  38 C.F.R. � 20.1102 (2006).

Furthermore, the VCAA requirements of 38 U.S.C.A. � 5103(a)
and 38 C.F.R. � 3.159(b) apply to all elements of a claim for
service connection, so that VA must specifically provide
notice that a disability rating and an effective date will be
assigned if service connection is awarded.  Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006).  In light of the
favorable opinion below with respect the veteran's increased
rating claim, any questions regarding the effective date to
be assigned are rendered moot.  Therefore, despite any
inadequate notice provided to the veteran on this element,
the Board finds no prejudice to the veteran in processing the
issuance of a final decision.  See Bernard v. Brown, 4 Vet.
App. 384, 394 (1993).

The Board also determines that VA has made reasonable efforts
to assist the veteran in obtaining evidence necessary to
substantiate his claim.  38 U.S.C.A. � 5103A (West 2002).
The information and evidence associated with the claims file
consist of VA medical treatment records, VA neurologic
examinations, the veteran's testimony at his hearing before
the Board, and written statements from the veteran.  There is
no indication that there is any additional relevant evidence
to be obtained by either VA or the veteran.

III. Increased Rating

The veteran argues that he is entitled to a disability rating
in excess of 0 percent for peripheral neuropathy of his left
and right lower extremities.

Disability evaluations are determined by comparing present
symptomatology with the criteria set forth in VA's Schedule
for Rating Disabilities, which is based on average impairment
in earning capacity.  See 38 U.S.C.A. � 1155; 38 C.F.R. Part
4.  When a question arises as to which of two ratings apply
under a particular diagnostic code, the higher evaluation is
assigned if the disability more closely approximates the
criteria for the higher rating; otherwise, the lower rating
is assigned.  38 C.F.R. � 4.7.  After careful consideration
of the evidence, any reasonable doubt remaining is resolved
in favor of the veteran.  38 C.F.R. � 4.3.

The veteran's entire history is reviewed when making
disability evaluations.  See 38 C.F.R. � 4.1; Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1995).  However, where the
question for consideration is the propriety of the initial
evaluation assigned after the grant of service connection,
evaluation of the medical evidence since the effective date
of the grant of service connection and consideration of the
appropriateness of "staged ratings" is required.  See
Fenderson v. Brown, 12 Vet. App. 119, 126 (1999).

The veteran's statements describing the symptoms of his
service-connected disorder are deemed competent evidence.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  However,
these statements must be considered with the clinical
evidence of record and in conjunction with the pertinent
rating criteria.

The veteran's peripheral neuropathy is currently rated under
Diagnostic Code 8721 for paralysis of the external popliteal
nerve (common peroneal).  Peripheral neuralgia, characterized
usually by a dull and intermittent pain, of typical
distribution so as to identify the nerve, is rated on the
same scale as paralysis of the external popliteal nerve, with
a maximum equal to moderate incomplete paralysis.  Under
Diagnostic Code 8521 for paralysis of the external popliteal
nerve, mild incomplete paralysis warrants a 10 percent
rating, and moderate incomplete paralysis warrants a 20
percent disability rating.  Also, under Diagnostic Code 8521,
complete paralysis of the external popliteal nerve is
characterized by foot drop and slight droop of first
phalanges of all toes, inability to dorsiflex the foot,
extension (dorsal flexion) of proximal phalanges of toes
lost, abduction of foot lost, adduction weakened, and
anesthesia covers entire dorsum of foot and toes.  See 38
C.F.R. �� 4.124, 4.124a, Diagnostic Codes 8521, 8721.

The record reflects that the veteran has been examined and
treated multiple times for peripheral neuropathy at VA
medical centers.

A VA medical record dated in October 2002 notes peripheral
neuropathy, and that the veteran had glove and stocking
distribution with sensory changes characteristic.

On July 2003 VA examination, neurological examination
revealed no focal or motor deficits, and sensory examination
revealed some slight decrease in the sense of vibration;
however, pinprick, light touch, proprioception and
temperature perception appeared to be well-preserved in both
lower extremities, with normal deep tendon reflexes.  The
examiner's impression was that there was no definite evidence
of significant peripheral diabetic sensory neuropathy.

On August 2003 VA examination, it was noted: that the veteran
have paresthesias, but no dysesthesias; that his peripheral
nerves did not interfere with his daily activities; that the
nerves involved were superficial sural nerves, at the
superficial peroneal nerves, the medial and lateral plantar
nerve, and the medial tibial nerves; that there was no
evidence of any paralysis or neuritis or neuralgia; that both
ankles showed flexion to 40 degrees, extension 18 degrees,
pronation 28 degrees and supination 18 degrees; that the
joint was not painful during examination; and that there was
no additional limitation of function because of pain.

On September 2003 neurological examination, the veteran was
noted to have normal gait and coordination.  On motor
examination, there was normal tone, bulk and strength, and
tendon reflexes 2+ and symmetrical.  On sensory examination,
there was normal pinprick and light touch.  The examiner's
impression, after electrodiagnostic testing, was that there
way no evidence of peripheral neuropathy.

An April 2005 neurological examination, which involved an
electromyography/neurovascular checks study of the legs,
revealed a generalized sensory much greater than motor
peripheral neuropathy in the legs/feet, with mainly axonal
features, which, the examiner opined, might be just stating
to involve the motor nerves and seemed to affect mostly the
sensory nerves currently.

On July 2005 examination, the veteran was noted to have an
antalgic gait and heel walking with difficulty.  Sensory
testing revealed light touch intact throughout.

On August 2005 examination, the veteran was noted to have
light touch sensory examination over all distributions
bilaterally without apparent deficit, and motor examination
including dorsiflexion, plantar flexion, and knee extension
against resistance five out of five and equal bilaterally
without exacerbation of significant pain.  Deep tendon
reflexes were 1+ and symmetric at the knees and ankles.

On December 2005 monofilament sensory examination, the
veteran had a normal examination for both the right and left
foot.

On January 2006 examination, the veteran was noted to have
paresthesias, dysthesias, and some sensory abnormalities in
the lower extremities.  It was noted that the condition
interfered with the veteran's walking and sleeping.  The
nerves involved were noted to be the superficial branches of
the sural nerves bilaterally, the superficial branches of the
peroneal nerves bilaterally, the superficial branches of the
plantar nerves bilaterally, and the superficial branches of
the saphenous nerves bilaterally.  Both lower extremities
were noted to be affected from the knee down.  The veteran
was diagnosed as having peripheral neuropathy secondary to
diabetes mellitus.

After a review of the record, resolving all reasonable doubt
in the veteran's favor, the Board determines that the
veteran's peripheral neuropathy of both the left and right
lower extremities more closely approximates the criteria for
10 percent disability rating than those for a 0 percent
rating under Diagnostic Code 8721.  The Board furthermore
determines that the veteran's peripheral neuropathy of both
the left and right lower extremities does not more closely
approximate the criteria for 20 percent disability rating
than those for a 10 percent rating.

The Board notes that on July 2003, August 2003, September
2003, August 2005, and December 2005 VA examinations, the
veteran was found to have essentially no motor deficit or
functional impairment of the bilateral lower extremities.
However, in addition to findings of sensory deficit in the
record, it was noted on April 2005 examination, which
involved an electromyography/neurovascular checks study of
the legs, that the veteran's peripheral neuropathy might be
just stating to involve the motor nerves.  Also, on July 2005
examination, the veteran was noted to have an antalgic gait
and heel walking with difficulty, and, on January 2006
examination, it was noted that the veteran's condition
interfered with his walking.

In light of the conflicting evidence regarding the existence
of any incomplete paralysis of the veteran's bilateral lower
extremities, the Board finds the medical evidence to be in
equipoise with respect to whether the veteran's disability
more closely approximates a 10 percent or 0 percent
disability rating under Diagnostic Code 8721.

The Board notes, however, that the evidence of record that
demonstrates motor deficit or impairment of function of the
lower extremities demonstrates only mild deficit or
impairment.  There is no indication in the record of foot
drop, weakened dorsiflexion or abduction of the foot,
extension (dorsal flexion) of proximal phalanges of toes
being lost, or anesthesia covering the entire dorsum of foot
and toes.  The record reflects that the effect of peripheral
neuropathy on the motor function of the lower extremities is
minimal in this case.  Therefore, the veteran's bilateral
peripheral neuropathy of the lower extremities does not more
closely approximate moderate incomplete paralysis that mild
incomplete paralysis.

Accordingly, disability ratings of 10 percent, but no more,
are warranted for the veteran's right and left lower
extremity peripheral neuropathy.

Although the veteran may believe that his current ratings do
not adequately reflect his degree of disability, he is not
competent to provide opinions that require medical knowledge.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).

The Board notes that the veteran is free to submit additional
evidence in the future to support a claim for an increased
disability rating, such as additional medical evidence that
his disability has gotten worse.

Although the veteran may believe that his current rating does
not adequately reflect his degree of disability, he is not
competent to provide opinions that require medical knowledge.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).

IV. Extra-Schedular Consideration

The above decisions are based on application of pertinent
provisions of the VA's Schedule for Rating Disabilities.
Additionally, the record does not establish that the
schedular criteria are inadequate to evaluate the veteran's
disabilities so as to warrant assignment of increased ratings
on an extra-schedular basis.  There is no showing that either
disability has resulted in marked interference with
employment (i.e., beyond that contemplated in the assigned
evaluations), necessitated frequent periods of
hospitalization, or has otherwise rendered impractical the
application of the regular schedular standards.  In the
absence of evidence these factors, the Board finds that the
criteria for submission for assignment of assignment of an
extra-schedular rating pursuant to 38 C.F.R. � 3.321(b)(1)
have not been met.  See Bagwell v. Brown, 9 Vet. App. 337,
339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

ORDER

1. The issue of entitlement to service connection for chronic
obstructive lung disease with obstructive sleep apnea, to
include as a result of exposure to herbicides, is dismissed.

2. The issue of entitlement to service connection for
gastroesophageal reflux disorder is dismissed.

3. The issue of entitlement to service connection for a leg
condition is dismissed.

4. Entitlement to a disability rating of 10 percent, but no
more, for peripheral neuropathy involving the left lower
extremity is granted subject to the law and regulations
governing the award of monetary benefits.

5. Entitlement to a disability rating of 10 percent, but no
more, for peripheral neuropathy involving the right lower
extremity is granted subject to the law and regulations
governing the award of monetary benefits.

____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JAMES L MARCH

disposition: denied

condition: knee

text:
Citation Nr: 0712000
Decision Date: 04/25/07    Archive Date: 05/01/07

DOCKET NO.  04-38 270	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska

THE ISSUES

1.  Entitlement to service connection for pneumonia.

2.  Entitlement to service connection for a right knee
disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Nancy S. Kettelle, Counsel

INTRODUCTION

The veteran served on active duty from December 1960 to
June 1963.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Anchorage,
Alaska.

FINDINGS OF FACT

1.  There is no competent evidence that the veteran had
pneumonia in service or at any time during the appeal period.

2.  There is no evidence of arthritis of the right knee in
service or within a year after the veteran's separation from
service, nor is there any competent evidence that relates any
current right knee disability, including arthritis, to
service or to any incident of service.

CONCLUSIONS OF LAW

1.  Service connection for pneumonia is not warranted.
38 U.S.C.A. � 1131, 5107 (West 2002); 38 C.F.R. � 3.303
(2006).

2.  Service connection for a right knee disability, including
arthritis, is not warranted.  38 U.S.C.A. �� 1101, 1131,
1112, 1137, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.307,
3.309 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA duty to notify and assist

Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) must be
examined.  The VCAA describes VA's duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 & Supp. 2006); 38 C.F.R. �� 3.102, 3.156(a),
3.159, and 3.326(a) (2006).  Upon receipt of a complete or
substantially complete application for benefits, VA is
required to notify the claimant and his or her
representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).

Proper notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that the VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his or her possession
that pertains to the claim.  See 38 C.F.R. � 3.159.  These
notice requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability;
a connection between the veteran's service and the
disability; degree of disability; and the effective date of
any award of benefits.  See Dingess v. Nicholson, 19 Vet.
App. 473 (2006).  Such notice must be provided to a claimant
before the initial unfavorable decision on a claim for VA
benefits is issued by the agency of original jurisdiction.
Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

In this case, in a letter to the veteran dated in
September 2002, prior to the initial adjudication of the
veteran's service connection claims, the RO explained that to
establish entitlement to service-connected compensation
benefits, the evidence must show three things: (1) an injury
in service, a disease that began in or was made worse in
service, or an event in service causing injury or disease;
or, evidence of presumptive condition within a specified time
after service (2) a current physical or mental disability;
and (3) a relationship between his current disability and an
injury, disease, or event in service.  The RO explained that
a current disability could be shown by medical evidence or
other evidence showing he had persistent or recurrent
symptoms of disability and that a relationship between
current disability and an injury in service was usually shown
by medical records or medical opinions.

In the September 2002 letter, the RO said that it would
obtain service records from the military, if appropriate, and
would obtain any medical records from VA medical centers.
The RO also notified the veteran that he should complete and
return release authorizations for doctors or hospitals where
he had received treatment and notified him that he should
tell VA about any additional information or evidence that he
wanted VA to try to get for him.  The RO told the veteran
that VA would try to help him get such things as medical
records, employment records, or records from other Federal
agencies.  The RO also explained that he must give VA enough
information about these records so that VA could request them
from the person or agency that had them and emphasized that
it was still his responsibility to support his claims with
appropriate evidence.

In view of the foregoing, the Board finds that the veteran
was effectively informed to submit all relevant evidence in
his possession and that he received notice of the evidence
needed to substantiate his service connection claims, the
avenues by which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence.  See Beverly v. Nicholson, 19 Vet.
App. 394, 403 (2005); see also Mayfield v. Nicholson, 19 Vet.
App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006).

With respect to the Dingess requirements, VA provided the
veteran with notice of what type of information and evidence
was needed to substantiate his service connection claims but
did not provide notice of the type of evidence necessary to
establish a disability rating or effective date.  Despite the
inadequate notice provided to the veteran on the latter
elements, the Board finds no prejudice to him in proceeding
with the issuance of this decision.  See Bernard v. Brown, 4
Vet. App. 384, 394 (1993) (where Board addresses question not
addressed by agency of original jurisdiction, Board must
consider whether veteran has been prejudiced thereby).  In
this case, the preponderance of the evidence is against the
service connection claims, rendering moot any question as to
disability rating or effective date.

Finally, service medical records are in the file, and VA
medical records and available private medical records have
been obtained as have medical records from the Social
Security Administration.  As to any duty to provide an
examination and/or seek a medical opinion on the pneumonia
and right knee disability service connection claims, the
Board notes that in the case of claim for disability
compensation, the assistance provided to the claimant shall
include providing a medical examination or obtaining a
medical opinion when such examination or opinion is necessary
to make a decision on the claim.  An examination or opinion
shall be treated as being necessary to make a decision on the
claim if the evidence of record, taking into consideration
all information and lay or medical evidence (including
statements of the claimant) contains competent evidence that
the claimant has a current disability, or persistent
recurring symptoms of disability; and indicates that the
disability or symptoms may be associated with the claimant's
active service; but does not contain sufficient medical
evidence for VA to make a decision on the claim.  See
38 U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159(c)(4).

Relative to the veteran's current claims, the Board finds
that, with no competent evidence indicating that the veteran
has pneumonia or any residuals thereof related to service or
that he has any right knee disability that may be associated
with service or any incident of service, there is no duty to
provide an examination or medical opinion.  Id.; see also
Wells v. Principi, 326 1381 (Fed. Cir. 2003); Duenas v.
Principi, 18 Vet. App. 512 (2004).

Based on the foregoing, the Board finds that the VA fulfilled
its VCAA duties to notify and to assist the veteran, and
thus, no additional assistance or notification is required.
The veteran has suffered no prejudice that would warrant a
remand, and his procedural rights have not been abridged.
See Bernard, 4 Vet. App. at 392-94.

Legal criteria

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. � 1131; 38 C.F.R. � 3.303.  Service
incurrence of arthritis will be presumed if manifest to a
degree of 10 percent or more within one year of separation
from active service.  38 U.S.C.A. �� 1101, 1112, 1137;
38 C.F.R. �� 3.307(a)(3), 3.309(a).

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.  If chronicity in service
is not established, a showing of continuity of symptoms 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 of the evidence,
including that pertinent to service, establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d).

In order to prevail on the merits on the issue of service
connection, there must be medical evidence of current
disability; medical or, in certain circumstances lay,
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the present
disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.
2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. � 5107.  A
veteran is entitled to the benefit of the doubt when there is
an approximate balance of positive and negative evidence.
See 38 C.F.R. � 3.102.  When a veteran seeks benefits and the
evidence is in relative equipoise, the veteran prevails.  See
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The
preponderance of the evidence must be against the claim for
benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518
(1996).

Background and analysis

Pneumonia

The veteran asserts that he was treated for pneumonia in 1961
or 1962 while he was stationed in Germany, and in a letter
received at the RO in June 2003, the veteran's mother
reported that while the veteran was in the Army he sent a
letter from Germany telling her he was in the hospital with
pneumonia.  She said that this was in the winter of 1962 as
best as she can remember.

Service medical records shows that in March 1962, while the
veteran was in Germany, he was seen at a dispensary in the
late evening with complaints of fever, chills, headache, sore
throat, a mild cough and backache, all of which had started
that day.  His temperature was102.8 degrees, deep breathing
caused a bronchial cough, and the physician noted one small
non-tender node in the left axilla.  The veteran was confined
to quarters in the general dispensary, and the following day,
after blood tests and clinical examination, the diagnosis was
common cold.  A throat culture was taken, and it was noted
that the veteran's temperature had gone down to 100.8
degrees.  The next day, his temperature was 98 degrees, and
he was discharged to duty.  The final diagnosis was common
cold.  A chronological record dated in July 1962 shows that
the veteran complained of pains in his chest when stretching.
On physical examination, his lungs were clear to percussion
and auscultation, and the heart was normal.  The impression
was question of myositis, and APCs were prescribed.  At the
separation physical examination in June 1963, the physician
evaluated the veteran's lungs as normal, and it was noted
that a chest X-ray at that time was normal.

Available post-service medical records, the earliest of which
is dated in 1998, show the veteran has at various times given
a past history of pneumonia.  For example, prior to a VA
cardiac catheterization in March 2000, the veteran gave a
history of having had pneumonia three times.  Later that
month, when seen by J.K, M.D. relative to coronary artery
disease, the veteran reported a cough and said he thought he
had an infection and would have to have an antibiotic.  On
examination of the chest there were scattered rhonchi, and
the physician said the veteran would be treated empirically
with Zpak.  In addition, records from Juneau Urgent Care
dated in May 2001 show the veteran gave a history of
pneumonia in the past, stating he had been hospitalized three
or four times.  His May 2001 complaints were sinus pain and
pressure and a productive cough for the past week.  On
physical examination of the lungs, there was diffuse
wheezing, and there were rhonchi, bilaterally, with frequent
coughing.  The assessment was acute bronchitis, and
medication was prescribed.  The veteran was seen with similar
complaints in August 2001 and February 2002, and at each
visit gave a history of pneumonia.  The diagnosis after
examination on each visit was bronchitis, and medication was
prescribed.  In August 2001, the veteran was again seen with
the same complaints, and the assessment was acute bronchitis
with bronchospasm.  A chest X-ray was done at Dr. J.K.'s
request in July 2003, and the radiologist stated the X-ray
was without evidence of active pulmonary disease.

Although the veteran's service medical records show he was
confined to a dispensary in March 1962 for treatment of a
common cold, those records show no diagnosis of pneumonia in
service, nor was any lung defect shown at the veteran's
separation examination in June 1963.  Post-service medical
records show that the veteran has given a past history of
multiple hospitalizations for pneumonia and that he has been
diagnosed as having bronchitis, but none of the medical
evidence of record indicates that the veteran currently has
pneumonia, nor is there any evidence suggesting that any
post-service respiratory disability, including bronchitis, is
in any was related to service or any incident of service.
The Board thus finds that neither the veteran's service
medical records nor post-service medical records support the
veteran's claim for service connection for pneumonia.

The Board is left with the veteran's own implicit opinion
that he had pneumonia in service and that he currently has
pneumonia or some other respiratory disability that is
related to service.  The record does not show, nor does the
veteran contend, that he has specialized education, training,
or experience that would qualify him to provide an opinion on
this matter.  It is now well established that a lay person
such as the veteran is not competent to opine on medical
matters such as diagnoses or etiology of medical disorders,
and his opinion that he has pneumonia or any chronic
respiratory disability related to service is therefore
entitled to no weight of probative value.  See, Cromley v.
Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992); see also38 C.F.R. � 3.159(a)(1)
(competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions).

In view of foregoing, the Board finds that the preponderance
of the evidence is against the claim and concludes that
service connection for pneumonia is not warranted.  As the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application.
38 U.S.C.A. � 5107(b); also see generally Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.
3d 1361 (Fed. Cir. 2001).

Right knee disability

The veteran has made no specific statements regarding his
right knee except that on his claim form he referred to
injury and surgery and later, in his substantive appeal, said
that his problems started in service and he does not know why
it's not in his records.

The veteran's service medical records include no mention of
complaint, finding, or treatment concerning his right knee.
At his separation physical examination in June 1963, the
veteran denied that he had ever had a "trick" or locked
knee, and on clinical examination, the physician evaluated
the veteran's lower extremities as normal.

Post service medical records show the veteran was seen at
Juneau Urgent Care in June 2002 with complaints of right knee
pain and decreased range of motion.  The veteran reported
that he had been dealing with right knee pain for years.  On
examination, there was full range of motion of the right knee
with tenderness over the medial collateral ligament.  The
clinical diagnosis was arthritis of the right knee.  In an
X-ray report also dated in June 2002, the radiologist stated
that the right knee joint space was fairly well preserved and
there was some minimal osteoarthritic lipping.  No other
post-service medical records in the file mention the
veteran's right knee.

The veteran's arthritis of the right knee is not shown until
decades after service precluding the grant of service
connection on a presumptive basis.  Further, there is no
medical evidence that relates any current right knee
disability to service or any incident of service.  Although
the veteran is competent to report that he had a right knee
injury and surgery in service, this is not borne out by his
service medical records, which include no entries concerning
a right knee injury or surgery in service, and further show
no history of such at his separation examination in
June 2003.  The Board is again left with only the veteran's
contentions and his implicit opinion that his right knee
arthritis is causally related to service.  The veteran's
opinion, standing on its own, is insufficient to establish
that his currently diagnosed arthritis is causally related to
service or had its onset in service.  See Cromley, 7 Vet.
App. at 379; Espiritu, 2 Vet. App. at 494-95 (laypersons are
not competent to offer medical opinions).

The preponderance of the evidence is clearly against the
claim for service connection for a right knee disability,
which precludes the application of the benefit of the doubt
doctrine.  38 U.S.C.A. � 5107(b); also see generally Gilbert
v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001).  It is the conclusion of the
Board that there is no basis to establish service connection
for a right knee disability on a direct or presumptive basis,
and the claim must be denied.

	(CONTINUED ON NEXT PAGE)

ORDER

Service connection for pneumonia is denied.

Service connection for a right knee disability, to include
arthritis, is denied.

____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: V L JORDAN

benefit: dic

text:
Citation Nr: 0713000
Decision Date: 05/02/07    Archive Date: 05/15/07

DOCKET NO.  05-09 585	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California

THE ISSUE

Entitlement to accrued benefits.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Motrya Mac, Associate Counsel

INTRODUCTION

The appellant is the mother of a deceased veteran.  The
veteran had active duty service from October 1965 to October
1967.  In August 2006 the appellant withdrew her request for
a travel Board hearing.

This case is before the Board of Veterans' Appeals (Board) on
appeal from an October 2003 decision by a Regional Office
(RO) of the Department of Veterans Affairs (VA).

FINDINGS OF FACT

1.  The deceased veteran is survived by his daughter.

2.  The appellant is not a dependent parent.

3.  The veteran died in March 2002; the appellant filed her
claim for accrued benefits in August 2003.

CONCLUSION OF LAW

The criteria for entitlement to accrued benefits have not
been met.
38 U.S.C.A � 5121 (West 2002); 38 C.F.R. �� 3.250, 3.1000
(2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Accrued benefits are periodic monetary benefits under VA laws
to which the veteran was entitled at death under existing
ratings or decisions, or those based on evidence in file at
the date of death, and due and unpaid for a period not to
exceed two years.  38 U.S.C.A. � 5121; 38 C.F.R. � 3.1000.
(The Board notes that a new revision to the law regarding
accrued benefits claims was recently enacted repealing the
two-year limit on accrued benefits, however it does not
affect the instant case as it relates only to cases where the
veteran's death occurred on or after December 16, 2003.)
Upon the death of a veteran, accrued benefits are paid first
to any living spouse of the deceased veteran, then to any
living children, then to the veteran's dependent parents or
surviving parent.  In all other cases, only so much of the
accrued benefit may be paid as may be necessary to reimburse
the person who bore the expense of last sickness or burial.
38 U.S.C.A. � 5121(a); 38 C.F.R. � 3.1000(a).  Among the
requirements for accrued benefits is that the claim for
accrued benefits be filed within one year after the date of
death of the individual with respect to whom such benefits
are sought. 38 U.S.C.A. � 5121(c); 38 C.F.R. � 3.1000(c).

38 C.F.R. � 3.250 (2006) governs whether a parent can be
classified as a dependent parent.  These regulations provide
that conclusive dependency of a parent (other than one who is
residing in a foreign country) will be held to exist where
the monthly income does not exceed:

(1) $400 for a mother or father not living together;

(2) $660 for a mother and father, or remarried parent and
spouse, living together:

(3) $185 for each additional "member of the family" as
defined in paragraph (b)(2).

38 C.F.R. � 3.250(a)(1)

Where the income exceeds the monthly amounts stated in
paragraph (a)(1) of this section dependency will be
determined on the facts in the individual case under the
principles outlined in paragraph (b) of this section.  In
such cases, dependency will not be held to exist if it is
reasonable that some part of the corpus of the claimant's
estate be consumed for his or her maintenance. 38 C.F.R. �
3.250(a)(2).

Dependency will be held to exist if the father or mother of
the veteran does not have an income sufficient to provide
reasonable maintenance for such father or mother and members
of his or her family under legal age and for dependent adult
members of the family if the dependency of such adult member
results from mental or physical incapacity.  38 C.F.R. �
3.250(b).

The term "reasonable maintenance" includes not only housing,
food, clothing, and medical care sufficient to sustain life,
but such items beyond the bare necessities as well as other
requirements reasonably necessary to provide those
conveniences and comforts of living suitable to and
consistent with the parents' reasonable mode of life.  38
C.F.R. � 3.250(b)(2).

In the instant case the veteran died in March 2002 and his
mother, the appellant, in August 2003 filed a claim for
reimbursement from accrued amounts due a deceased
beneficiary.  VA has reimbursed the funeral home for the
veteran's burial expenses.  The appellant also has claimed
reimbursement for burial expenses, however this was denied in
January 2004, the appellant has not perfected an appeal and
thus this claim is not in appellate status.  The appellant is
arguing that the veteran was too sick to cash his VA checks
before he died. She is claiming that she paid for his
expenses and is seeking reimbursement for his truck and
living expenses incurred during the final months prior to his
death.   In the instant case, the evidence does not show that
the appellant has standing to file a claim for accrued
benefits under 38 C.F.R. � 3.1000.  The evidence of record
indicates that the deceased veteran is survived by his
daughter, who would have priority beneficiary status over the
appellant for accrued benefits purposes.  (The appellant has
indicated that the veteran's surviving daughter attempted to
deposit the veteran's VA checks into the appellant's account,
however this matter is not pertinent at this juncture.)
Furthermore, the appellant is not arguing that she is a
dependent parent as defined in 38 C.F.R. � 3.250.  She is not
asserting that she was dependent on the veteran for her own
living expenses.  She is merely contending that she is
entitled to compensation for the veteran's living and
automobile expenses, for which she herself paid.

It is also noteworthy that the claim currently before the
Board is not associated with the veteran's last sickness or
burial expenses and thus the appellant would not be entitled
to accrued benefits under 38 C.F.R. � 3.1000(a)(4).  Lastly,
even if the appellant established entitlement to accrued
benefits, she would be denied benefits as she did not file
her claim within one year of the veteran's death as required
in 38 C.F.R. � 3.1000(c).  The veteran's accrued benefits
claim was untimely as the veteran died in March 2002 and her
claim was received in August 2003.

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), is codified at
38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2002) and
implementing regulations (codified at 38 C.F.R �� 3.102,
3.156(a), 3.159 and 3.326(a)) provide for, among other
things, notice and assistance to claimants under certain
circumstances.  During the pendency of this appeal, on March
3, 2006, the United States Court of Appeals for Veterans
Claims issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
providing further guidance on VCAA notice requirements.
However, Congress, in enacting the statute, noted the
importance of balancing the duty to assist with "the
futility of requiring VA to develop claims where there is no
reasonable possibility that the assistance would substantiate
the claim."  Mason v. Principi, 16 Vet. App. 129, 132 (2002)
(quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000)
(statement of Sen. Rockefeller)).  When the law and not the
evidence is dispositive of the claim, VCAA is not applicable.
See Mason, 16 Vet. App. at 132 (VCAA not applicable to a
claim for nonservice-connected pension when the claimant did
not serve on active duty during a period of war); Smith
(Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not
affect a federal statute that prohibited payment of interest
on past due benefits), aff'd, 28 F.3d 1384 (Fed. Cir. 2002).
As the law is dispositive in the instant case, VCAA is not
applicable.

ORDER

Entitlement to accrued benefits is denied.

____________________________________________
V. L. Jordan
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JOY A MCDONALD

condition: kidney

text:
Citation Nr: 0714000
Decision Date: 05/11/07    Archive Date: 05/25/07

DOCKET NO.  04-42 434	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Entitlement to service connection for polycystic kidney
disease.

2.  Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for
hypertension.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K. Millikan Sponsler, Associate Counsel

INTRODUCTION

The veteran served on active military duty from July 1963 to
December 1966.  This matter comes to the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Cleveland, Ohio, Regional Office (RO) of the Department of
Veterans Affairs (VA).

FINDINGS OF FACT

1.  The evidence of record demonstrates that polycystic
kidney disease is not related to service.

2.  Service connection for hypertension was granted by an
April 1972 rating decision.  Service connection for
hypertension was severed by an unappealed September 1973
rating decision.

3.  Evidence associated with the claims file since the
unappealed September 1973 rating decision does not raise a
reasonable possibility of substantiating the veteran's claim
for entitlement to service connection for hypertension.

CONCLUSIONS OF LAW

1.  Polycystic kidney disease was not incurred in or
aggravated by active military service.  38 U.S.C.A. �� 1110,
5103A, 5107 (West 2002); 38 C.F.R. � 3.303 (2006).

2.  Evidence submitted to reopen the claim of entitlement to
service connection for hypertension is not new and material,
and therefore, the claim is not reopened.  38 U.S.C.A.
�� 5108, 7105 (West 2002); 38 C.F.R. � 3.156(a) (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the veteran's claim for entitlement to
service connection for polycystic kidney disease and claim to
reopen a claim for entitlement to service connection for
hypertension, VA has met all statutory and regulatory notice
and duty to assist provisions.  See 38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005);
38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2006).  Prior to
initial adjudication of the veteran's claims, a May 2004
letter satisfied the duty to notify provisions.  38 U.S.C.A.
� 5103(a); 38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002); Kent v. Nicholson, 20 Vet. App.
1, 9-10 (2006).  Although the letter did not notify the
veteran of effective dates or the assignment of disability
evaluations, there is no prejudice to the veteran because the
preponderance of the evidence is against service connection
for polycystic kidney disease and the claim for entitlement
to service connection for hypertension is not reopened.  See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see
also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The
letter also essentially requested that the veteran provide
any evidence in his possession that pertained to these
claims.  38 C.F.R. � 3.159(b)(1).  The veteran's service
medical records, VA medical treatment records, and identified
private medical records have been obtained.  38 U.S.C.A. �
5103A; 38 C.F.R. � 3.159.  Although VA is required to provide
a medical examination when such an examination is necessary
to make a decision on a claim, none is required regarding the
veteran's claim for entitlement to service connection.  38
U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159.  Such development is
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide the
claim, but contains:  (1) competent evidence of diagnosed
disability or symptoms of disability, (2) establishes that
the veteran suffered an event, injury or disease in service,
or has a presumptive disease during the pertinent presumptive
period, and (3) indicates that the claimed disability may be
associated with the in-service event, injury, or disease, or
with another service-connected disability.  38 C.F.R.
� 3.159(c)(4).  Here, the evidence of record does not
establish an inservice incurrence of polycystic kidney
disease or indicate a nexus to active service.  There is no
indication in the record that other additional evidence
relevant to the issues decided herein is available and not
part of the claims file.  See Pelegrini v. Principi, 18 Vet.
App. 112 (2004).

In the case of the claim to reopen, the VCAA explicitly
provides that "[n]othing in [38 U.S.C.A. � 5103A] shall be
construed to require [VA] to reopen a claim that has been
disallowed except when new and material evidence is presented
or secured, as described in [38 U.S.C.A. � 5108]."  38
U.S.C.A. � 5103A(f).  Nevertheless, VA has a duty, in order
to assist claimants, to obtain evidence needed to
substantiate a claim.  38 U.S.C.A. � 5103A; 38 C.F.R. �
3.159.  In this case, as noted above, the veteran's service
medical records and VA outpatient and inpatient medical
records are associated with the claims file.  The veteran was
asked to advise VA if there was any other information or
evidence he considered relevant to his claim so that VA could
help him by getting that evidence.  He was also advised what
evidence VA had requested, and notified what evidence had
been received.  The veteran has not identified any
additional, relevant evidence that has not been requested or
obtained, and there is no indication that any pertinent
evidence was not received.  As the veteran has not identified
any records that are not already in the claims file, the
Board finds that there is no additional duty to assist prior
to the submission of new and material evidence.  Thus, VA's
duty to assist regarding the veteran's claim to reopen has
been fulfilled.

As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless.  See Mayfield v. Nicholson, 20 Vet App.
537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App.
473.

Claim for entitlement to service connection for polycystic
kidney disease

Generally, service connection may be established for
disability resulting from disease or injury incurred in or
aggravated by service.  38 U.S.C.A. � 1110; 38 C.F.R.
� 3.303(a).  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).  In
order to establish service connection for a claimed disorder,
the following must be shown:  (1) medical evidence of a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability.  Hickson v. West, 12 Vet. App. 247, 253
(1999).

The veteran's service entrance and discharge examinations
were negative for any kidney complaints, treatment, or
diagnoses.

In an August 1967 letter, a private physician stated that he
had examined the veteran in June 1967 and found elevated
blood pressure.  In July 1967, the assessment was mild
essential hypertension, well-controlled.  A January 1968
private medical record diagnosed polycystic kidney disease.
A July 1968 private x-ray report showed enlargement of both
kidneys, with deformity in the arrangement of the collecting
systems, bilaterally, that would indicate extrinsic pressure
such as might occur with polycystic kidney disease.

A March 1972 VA examination was conducted.  The diagnosis was
polycystic kidney disease.  A January 1973 VA examination was
conducted.  The diagnosis was hypertension due to polycystic
kidneys.  An April 1973 VA examination was conducted.  A
radiology report impression was bilateral polycystic kidneys.
The diagnoses were bilateral polycystic kidney disease and
hypertension, secondary thereto.

In a July 1973 VA medical certificate, a private physician
diagnosed bilateral polycystic kidney disease with resulting
hypertension.

In an August 1973 lay statement, the veteran's father noted
that prior to service the veteran was very active in
athletics.  Upon his return from service, the veteran was
nervous and had changed.  In an August 1973 lay statement,
the veteran asserted that combat service aggravated his
nervous system by inducing stress and strain.

Private medical records from September 2002 to January 2004
assessed hypertension.  A May 2004 private medical summary
indicated the veteran's current medical problems included
congenital polycystic kidneys and hypertension.

In a May 2004 lay statement, the veteran asserted that early
symptoms of his polycystic kidney disease showed up during
active duty.

The Board finds that the evidence of record does not support
a finding of service connection for polycystic kidney
disease.  The veteran has a currently diagnosed disability -
congenital polycystic kidney disease.  Degmetich v. Brown,
104 F.3d 1328, 1333 (1997) (holding that the existence of a
current disability is the cornerstone of a claim for VA
disability compensation).  Polycystic kidney disease is a
congenital disease.  See Stedman's Medical Dictionary 949
(27th ed. 2000) (noting that polycystic kidney disease is an
inherited or genetic disease).  Although congenital or
developmental defects are not diseases or injuries for the
purposes of service connection, service connection may be
granted for a congenital disease on the basis of inservice
aggravation.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711
(1990); see also Monroe v. Brown, 4 Vet. App. 513, 514 (1993)
(noting that service connection may be granted for diseases,
but not defects, of a congenital, developmental, or familial
origin).  A congenital or familial disease by its very nature
preexists military service, but service connection for such a
disease may be granted if manifestations of the disease
during service constituted aggravation of the condition.
VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990).  But here, the
veteran's service medical records were negative for any
kidney complaints, findings, treatments, or diagnoses.
Accordingly, service connection for polycystic kidney disease
is not warranted.

In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the veteran's claim, the doctrine is not
for application.  Gilbert v. Derwinski, 1 Vet. App. 49
(1990).

Claim to reopen a claim for entitlement to service connection
for hypertension

Generally, service connection may be established for
disability resulting from disease or injury incurred in or
aggravated by service.  38 U.S.C.A. � 1110; 38 C.F.R. �
3.303(a).  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).  In order to
establish service connection for a claimed disorder, the
following must be shown: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability.  Hickson, 12 Vet. App. at 253.

In this case, the RO determined that new and material
evidence was not presented to reopen the veteran's claim for
entitlement to service connection for hypertension.  Such a
determination, however, is not binding on the Board, and the
Board must first decide whether new and material evidence has
been received to reopen the claim.  Barnett v. Brown, 83 F.3d
1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet.
App. 239, 244 (1993) (holding that Board reopening is
unlawful when new and material evidence has not been
submitted).

In a September 1973 rating decision, the RO severed
previously granted service connection for hypertension
finding that the grant of service connection had been clear
and unmistakable error because the veteran's hypertension was
not due to service - it was secondary to congenital
polycystic kidney disease, a nonservice-connected disorder.
The veteran did not file a notice of disagreement.  The RO
decision is final based on the evidence then of record.  See
38 U.S.C.A. � 7105; 38 C.F.R. � 20.1103 (2006).  In March
2004, the veteran filed a claim to reopen the issue of
entitlement to service connection for hypertension.  In a
September 2004 rating decision, the RO did not find new and
material evidence to reopen the veteran's claim because the
evidence submitted did not relate to an unestablished fact
necessary to substantiate the claim and did not raise a
reasonable possibility of substantiating the claim.

Because the September 1973 rating decision is the last final
disallowance, the Board must review all of the evidence
submitted since that action to determine whether the
veteran's claim for service connection should be reopened and
re-adjudicated on a de novo basis.  Evans v. Brown, 9 Vet.
App. 273, 282-83 (1996).  If new and material evidence is
presented with respect to a claim which has been disallowed,
the Board shall reopen the claim and review the former
disposition of the claim.  38 U.S.C.A. � 5108.

New and material evidence can be neither cumulative, nor
redundant, of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim.  "New" evidence means existing evidence not
previously submitted to VA.  "Material" evidence means
existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim.  See 38 C.F.R.
� 3.156(a).  In determining whether evidence is new and
material, the credibility of the evidence is presumed.
Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Evidence of record at the time of the September 1973 rating
decision includes the veteran's service medical records,
which were negative for hypertension or high blood pressure.
In an August 1967 letter, a private physician stated that he
had examined the veteran in June 1967, and found elevated
blood pressure.  One week later, after medication, blood
pressure was decreased.  The private physician stated that in
July 1967 the assessment was mild essential hypertension,
well-controlled.  Private medical records show treatment for
high blood pressure from July 1967 to January 1972.  A March
1972 VA examination was conducted.  The diagnosis was
moderately severe hypertension.  In a January 1973 VA
examination, the diagnosis was hypertension due to polycystic
kidneys.  In an April 1973 VA examination, the diagnoses were
bilateral polycystic kidney disease and hypertension,
secondary thereto.

In a July 1973 VA medical certificate, a private physician
diagnosed bilateral polycystic kidney disease with resulting
hypertension.  The physician noted that hypertension could
have many causes.  The physician noted that the veteran was
hypertensive in service.  In an August 1973 lay statement,
the veteran's father noted that prior to service the veteran
was very active in athletics.  Upon his return from service,
the veteran was nervous and had changed.

Evidence of record received since the September 1973 rating
decision includes an August 1973 lay statement, in which the
veteran asserted that combat service aggravated his nervous
system by inducing stress and strain.  Private medical
records from September 2002, January 2003, April 2003, July
2003, October 2003, and January 2004 indicated treatment for
hypertension.  A May 2004 private medical summary indicated
the veteran's current medical problems included congenital
polycystic kidneys and hypertension.

The Board finds that new and material evidence has not been
submitted to reopen the claim for entitlement to service
connection for hypertension.  The evidence submitted since
the September 1973 rating decision is new because it was not
in existence and was not yet submitted to VA.  But the
evidence is not material.  The newly submitted private
medical records and lay statement reiterate the diagnosis of
hypertension, but do not address any relationship to service.
Accordingly, the evidence does not raise a reasonable
possibility of substantiating the claim.  The evidence is
thus not new and material and the claim for entitlement to
service connection for hypertension is not reopened.

Moreover, as new and material evidence to reopen a finally
disallowed claim has not been submitted, the benefit of the
doubt doctrine is not applicable.  Annoni v. Brown, 5 Vet.
App. 463, 467 (1993).

ORDER

Service connection for polycystic kidney disease is denied.

New and material evidence not having been submitted, the
claim for entitlement to service connection for hypertension
is not reopened.

____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: KATHLEEN K GALLAGHER

text:
Citation Nr: 0715000
Decision Date: 05/18/07    Archive Date: 06/01/07

DOCKET NO.  04-27 044	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Entitlement to service connection for a renal cyst, to
include as secondary to service-connected prostatitis.

2.  Entitlement to an increased evaluation for prostatitis,
currently assigned a 10 percent disability evaluation.

ATTORNEY FOR THE BOARD

Jessica J. Wills, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1966 to October
1969.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio, which denied the benefits sought on
appeal.  The veteran appealed that decision to BVA, and the
case was referred to the Board for appellate review.  The
Board remanded the case for further development in December
2005, and that development was completed by the Appeals
Management Center.  The case has since been returned to the
Board for appellate review.

The Board also observes that the veteran's appeal had
originally included the issue of entitlement to service
connection for a right knee disorder.  However, during the
pendency of the appeal, a rating decision dated in November
2006 granted service connection for traumatic arthritis of
the right knee status post injury and assigned a 10 percent
disability evaluation effective from November 25, 2002.
Therefore, the issue of entitlement to service connection for
a right knee disorder no longer remains in appellate status,
and no further consideration is required.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.

2.  The veteran has not been shown to have a renal cyst that
is causally or etiologically related to service or to a
service-connected disorder.

3.  The veteran has not been shown to have continual urine
leakage, post surgical urinary diversion, urinary
incontinence, or stress incontinence requiring the wearing of
absorbent materials that must be changed less than two times
per day; a daytime voiding interval between and two hours or
awakening to void three to four times per night; urinary
retention requiring intermittent or continuous
catheterization; recurrent symptomatic infection requiring
drainage/frequent hospitalization (greater than two times per
year) and/or requiring continuous intensive management;
albumin constant or recurring with hyaline and granular casts
or red blood cells; or, transient or slight edema or
hypertension at least 10 percent disabling under Diagnostic
Code 7101.

CONCLUSIONS OF LAW

1.  A renal cyst was not incurred in active service and is
not proximately due to, the result of, or aggravated by a
service-connected disability. 38 U.S.C.A. � 1110 (West 2002);
38 C.F.R. �� 3.102, 3.303, 3.310(a) (2006).

2.  The criteria for an evaluation in excess of 10 percent
for prostatitis have not been met. 38 U.S.C.A. � 1155 (West
2002); 38 C.F.R. �� 3.102, 3.159, 4.1-4.14, 4.115b Diagnostic
Codes 7527 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed.  38 U.S.C.A. �� 5103(a), 5103A;
38 C.F.R. � 3.159(b); see Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002).  The notice required must be provided
to the claimant before the initial unfavorable decision on a
claim for VA benefits, and it must (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim.
38 U.S.C.A. �� 5103(a); 38 C.F.R. � 3.159(b)(1); Pelegrini v.
Principi, 18 Vet. App. 112, 120 (2004).

In this case, the RO did provide the appellant with notice in
December 2002, prior to the initial decision on the claim in
September 2003, as well as in January 2006 and April 2006.
Therefore, the timing requirement of the notice as set forth
in Pelegrini has been met and to decide the appeal would not
be prejudicial to the claimant.

Moreover, the requirements with respect to the content of the
notice were met in this case.  The RO informed the veteran in
the notice letters about the information and evidence that is
necessary to substantiate his claims for service connection
and for an increased evaluation.  Specifically, the December
2002 and April 2006 letters indicated that the evidence must
show that he had an injury in military service or a disease
that began in, or was made worse during military service, or
that there was an event in service that caused injury or
disease; that he has a current physical or mental disability;
and, that there is a relationship between his current
disability and an injury, disease, or event in military
service.  The December 2002 letter also indicated that
establishing service connection on a secondary basis requires
evidence of the claimed physical or mental disorder and
evidence showing that a service-connected disability either
caused or aggravated his claim disorder.  In addition, the
December 2002 letter stated that in order to establish
entitlement to an increased evaluation for prostatitis the
evidence must show an increase in severity.  Similarly, the
April 2006 letter stated, "To establish entitlement to an
increased evaluation for prostatitis, currently assigned a 10
percent disability evaluation, the evidence must show that
your service-connected condition has gotten worse."
Additionally, the April 2004 statement of the case (SOC) and
the September 2004 and November 2006 supplemental statements
of the case (SSOC) notified the veteran of the reasons for
the denial of his application and, in so doing, informed him
of the evidence that was needed to substantiate his claims.
In fact, the April 2004 SOC and the November 2006 SSOC
provided the veteran with the schedular criteria used to
evaluate his service-connected prostatitis, namely Diagnostic
Code 5257.

In addition, the RO notified the veteran in the notice
letters about the information and evidence that VA will seek
to provide.  In particular, the December 2002, January 2006,
and April 2006 letters indicated that reasonable efforts
would be made to help him obtain evidence necessary to
support his claims and that VA was requesting all records
held by Federal agencies, including service medical records,
military records, and VA medical records.  The veteran was
also informed that a medical examination would be provided or
that a medical opinion would be obtained if it was determined
that such evidence was necessary to make a decision on his
claims.

The RO also informed the veteran about the information and
evidence that he was expected to provide.  Specifically, the
December 2002, January 2006, and April 2006 letters notified
the veteran that he must provide enough information about his
records so that they could be requested from the agency or
person that has them.  The December 2002 and April 2006
letters also requested that he complete and return the
enclosed VA Form 21-4142, Authorization and Consent to
Release Information to the Department of Veterans Affairs, if
there were any private medical records that he would like VA
to obtain on his behalf.  In addition, the December 2002
letter stated that it was still the veteran's responsibility
to support his claim with appropriate evidence, and the
January 2006 and April 2006 letters informed him that it was
his responsibility to ensure that VA receives all requested
records that are not in the possession of a Federal
department or agency.

Although the notice letters that were provided to the
appellant did not specifically contain the "fourth
element," the Board finds that the appellant was otherwise
fully notified of the need to give to VA any evidence
pertaining to his claims.  In this regard, the RO has
informed the veteran in the rating decision, SOC, and SSOCs
of the reasons for the denial of his claims and, in so doing,
informed him of the evidence that was needed to substantiate
those claims.

All the law requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims.  Once
this has been accomplished, all due process concerns have
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. � 20.1102 (harmless error).  As noted above,
because each of the four notice requirements has been fully
satisfied in this case, any error in not providing a single
notice to the appellant covering all content requirements is
harmless error.

Further, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above,
which held that the notice requirements of 38 U.S.C.A.
� 5103(a) and 38 C.F.R. � 3.159(b) apply to all five elements
of a service connection claim.  Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability.  The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.

In the present appeal, the veteran was provided with notice
of the type of evidence necessary to establish a disability
rating and effective date.  In this regard, the Board notes
that the November 2006 SSOC informed the veteran that a
disability rating was assigned when a disability was
determined to be service-connected and that such a rating
could be changed if there were changes in his condition.  The
SSOC also explained how disability ratings and effective
dates were determined.

In addition, the duty to assist the veteran has also been
satisfied in this case.  The veteran's service medical
records and all available VA and private medical records
pertinent to the years after service are in the claims file
and were reviewed by both the RO and the Board in connection
with the veteran's claims.  He was also afforded VA
examinations in May 2003, June 2003, and July 2006.  VA has
further assisted the veteran and his representative
throughout the course of this appeal by providing them with a
SOC and SSOCs, which informed them of the laws and
regulations relevant to the veteran's claims.  For these
reasons, the Board concludes that VA has fulfilled the duty
to assist the veteran in this case.

I.  Service Connection

Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. �� 1110, 1131.  That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease.  If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. � 3.303(b).  Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. � 3.303(d).

Under section 3.310(a) of VA regulations, service connection
may be established on a secondary basis for a disability
which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. � 3.310(a).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
proximately caused by or (b) proximately aggravated by a
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995) (en banc).  Where a service-connected
disability aggravates a nonservice-connected condition, a
veteran may be compensated for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Allen, 7 Vet. App. at 448.
Temporary or intermittent flare-ups of symptoms of a
condition, alone, do not constitute sufficient evidence
aggravation unless the underlying condition worsened. Cf.
Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
veteran is not entitled to service connection for a renal
cyst.  The veteran's service medical records are negative for
any complaints, treatment, or diagnosis of a renal cyst.
Moreover, the Board notes that the veteran did not seek
treatment for renal cyst for many decades following his
separation from service.  Therefore, the Board finds that a
renal cyst did not manifest during his period of service or
for many years thereafter.

With regard to the decades-long evidentiary gap in this case
between active service and the earliest complaints of a renal
cyst, the Board notes that this absence of evidence
constitutes negative evidence tending to disprove the claim
that the veteran had an injury or disease in service which
resulted in chronic disability or persistent symptoms
thereafter.  See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.
Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact); see also 38 C.F.R. � 3.102
(noting that reasonable doubt exists because of an
approximate balance of positive and "negative" evidence).
Thus, the lack of any objective evidence of continuing
complaints, symptoms, or findings for many decades between
the period of active duty and the first complaints or
symptoms of a renal cyst is itself evidence which tends to
show that a renal cyst did not have its onset in service or
for many years thereafter.

A prolonged period without medical complaint can be
considered, along with other factors concerning a claimant's
health and medical treatment during and after military
service, as evidence of whether an injury or a disease was
incurred in service which resulted in any chronic or
persistent disability.  See Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000).  The Board must consider all the
evidence including the availability of medical records, the
nature and course of the disease or disability, the amount of
time that elapsed since military service, and any other
relevant facts in considering a claim for service connection.
Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir.
2000) (holding that the absence of medical records during
combat conditions does not establish absence of disability
and thus suggesting that the absence of medical evidence may
establish the absence of disability in other circumstances).
Thus, when appropriate, the Board may consider the absence of
evidence when engaging in a fact finding role.  See Jordan v.
Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing
separately) (noting that the absence of evidence may be
considered as one factor in rebutting the aggravation part of
the section 1111 presumption of soundness).

In addition to the lack of evidence showing that a renal cyst
manifested during active duty service or within close
proximity thereto, the medical evidence of record does not
link any current diagnosis of a renal cyst to the veteran's
active service.  As noted above, the record shows that there
were no complaints, treatment, or diagnosis of a renal cyst
in service or for many decades thereafter.  Moreover, the
veteran has not even contended that he currently has a renal
cyst that is directly related to his military service, as he
has instead claimed that the disorder is related to his
service-connected prostatitis.  Therefore, the Board finds
that a renal cyst did not manifest during service and has not
been shown to be causally or etiologically to an event,
disease, or injury in service.

As to the veteran's claim that he has a renal cyst that is
related to his service-connected prostatitis, the Board also
finds that the medical evidence of record does not support
this contention.  Although the veteran has a current
diagnosis of a renal cyst and is service-connected for
prostatitis, the medical evidence has not established a
relationship between these disorders.  In fact, the July 2006
VA examiner commented that the veteran's renal cysts are
simple cysts and are in no way related to his prostatitis.
In this regard, he explained that renal cysts are basically a
dysfunction of the tubular formation in utero and have
nothing to do with any other abnormalities along the urinary
tract.  Moreover, the examiner stated that the veteran's
renal cystic disease is congenital in nature.  The Board
notes that congenital or developmental defects are not
diseases or injuries within the meaning of the applicable
legislation. 38 C.F.R. �� 3.303(c), 4.9 (2005); see Winn v.
Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110
F.3d 56 (Fed. Cir. 1997), and cases cited therein; see also
VAOPGCPREC 82- 90.  The VA General Counsel has further noted
that if, during service, superimposed disease or injury
occurs, service connection may be warranted for the resultant
disability. Id.  However, as to a superimposed renal cyst,
such is not shown by competent medical evidence until decades
after service.  Simply put, the evidence absent from the
record is a medical opinion to the effect that the veteran's
service-connected prostatitis either caused or aggravated the
veteran's renal cyst.  Accordingly, service connection cannot
be granted on a secondary basis.  Therefore, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for a renal cyst.

Because the preponderance of the evidence is against the
veteran's claim the benefit of the doubt provision does not
apply.  Accordingly, the Board concludes that service
connection for a renal cyst is not warranted.  Although the
veteran contends that he currently has a renal cyst that is
related to his military service, the veteran is not a medical
professional, and therefore his beliefs and statements about
medical matters do not constitute competent evidence on
matters of medical etiology or diagnosis and absent a
professional medical opinion linking a current disorder to
service, service connection cannot be granted.  See Espiritu
v. Derwinski, 2 Vet. App. 492 (1992).

II.  Increased Evaluation

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4.  The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service.  The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. 38 C.F.R. � 4.7.

In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. ��
4.1, 4.2, 4.41.  Consideration of the whole-recorded history
is necessary so that a rating may accurately reflect the
elements of disability present. 38 C.F.R. � 4.2; Peyton v.
Derwinski, 1 Vet. App. 282 (1991).  While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings.  Where an increase in the
disability rating is at issue, the present level of the
veteran's disability is the primary concern.  Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).

The veteran is currently assigned a 10 percent disability
evaluation for his prostatitis pursuant to 38 C.F.R. �
4.115b, Diagnostic Code 7527.  Under that diagnostic code,
residuals of prostate gland injuries, infections, and
hypertrophy are evaluated as voiding dysfunction or urinary
tract infection, which ever is predominant.

Voiding dysfunction is evaluated under the three
subcategories of urine leakage, urine frequency, and
obstructed voiding.  Under the subcategory of urine leakage,
a 20 percent disability evaluation is assigned for continual
urine leakage, post surgical urinary diversion, urinary
incontinence, or stress incontinence requiring the wearing of
absorbent materials that must be changed less than two times
per day.

Under the subcategory of urinary frequency, a 10 percent
disability evaluation is contemplated for a daytime voiding
interval between two and three hours or awakening to void two
times per night.  A 20 percent disability evaluation is
warranted for a daytime voiding interval between one and two
hours or awakening to void three to four times per night

Under the subcategory of obstructed voiding, a 10 percent
disability evaluation is assigned when there is marked
obstructive symptomatology (hesitancy, slow or weak stream,
decreased force of stream) with any one or combination of the
following: post void residuals greater than 150 cc;
uroflowmetry; markedly diminished peak flow rate (less than
10 cc/sec); recurrent urinary tract infections secondary to
obstruction; or stricture disease requiring periodic dilation
every two to three months.  A 20 percent disability
evaluation is warranted for urinary retention requiring
intermittent or continuous catheterization.

Under the rating criteria for urinary tract infections, a 10
percent disability evaluation is assigned for long-term drug
therapy, one to two hospitalizations per year, and/or
requiring intermittent intensive management.  A 30 percent
disability evaluation is warranted for recurrent symptomatic
infection requiring drainage/frequent hospitalization
(greater than two times per year) and/or requiring continuous
intensive management.   The criteria also provide that poor
renal function should be rated as renal dysfunction.

Under the rating criteria for renal dysfunction, a
noncompensable evaluation is contemplated when there is
albumin and casts with a history of acute nephritis; or,
hypertension that is noncompensable under Diagnostic Code
7101.  A 30 percent disability evaluation is assigned when
there is albumin constant or recurring with hyaline and
granular casts or red blood cells; or, transient or slight
edema or hypertension at least 10 percent disabling under
Diagnostic Code 7101.  The Board notes that a 10 percent
disability rating is warranted under Diagnostic Code 7101
when the diastolic pressure is predominantly 100 or more; the
systolic pressure is predominantly 160 or more; or the
minimum evaluation for an individual with a history of
diastolic pressure predominantly 100 or more who requires
continuous medication for control.

In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
veteran is not entitled to an increased evaluation for his
prostatitis.  The medical evidence of record does not show
him to have continual urine leakage, post surgical urinary
diversion, urinary incontinence, or stress incontinence
requiring the wearing of absorbent materials that must be
changed less than two times per day; a daytime voiding
interval between one and two hours or awakening to void three
to four times per night; urinary retention requiring
intermittent or continuous catheterization; recurrent
symptomatic infection requiring drainage/frequent
hospitalization (greater than two times per year) and/or
requiring continuous intensive management; albumin constant
or recurring with hyaline and granular casts or red blood
cells; or, transient or slight edema or hypertension at least
10 percent disabling under Diagnostic Code 7101.  In fact,
the June 2003 examiner indicated that the veteran had
recurrent prostatitis that was inactive on examination.  The
Board does observe that VA medical records dated from
February 1999 to January 2005 indicate that the veteran
subsequently sought treatment in December 2004 and January
2005 for groin pain.  However, the veteran was afforded an
additional VA examination in July 2006 at which time he
denied having any voiding symptoms.  The examiner also noted
that the veteran had had an exhausted work-up of his urinary
complaints without any significant positive findings with the
exception of one prostate fluid culture, which was not
considered reliable because it was not a clean catch.  As
such, the examiner stated that the veteran has never showed
any absolute signs of any urinary tract infections in spite
of his complaints.  It was also noted that the expressed
prostatic secretions were examined at that time and showed
absolutely no evidence of any infection.  Based on a review
of all of the records, the July 2006 VA examiner stated that
he did not find any significant evidence to indicate that the
veteran really had any infectious prostatitis and further
commented that there was no objective support to confirm the
veteran's subjective complaints.  As such, the veteran has
not been shown to have met the criteria for an evaluation in
excess of 10 percent.  Therefore, the Board finds that the
preponderance of the evidence is against the veteran's claim
for an increased evaluation for prostatitis.

In reaching this decision, the potential application of
various provisions of Title 38 Code of Federal Regulations
have been considered, whether or not they were raised by the
veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In
particular, the Board has considered the provisions of 38
C.F.R. � 3.321(b)(1).  In this case, however, the veteran's
service-connected prostatitis has not caused marked
interference with employment beyond that contemplated by the
schedule for rating disabilities, necessitated frequent
periods of hospitalization, or otherwise rendered impractical
the application of the regular schedular standards utilized
to evaluate the severity of his disability.  In the absence
of such factors, the Board finds that the requirements for an
extraschedular evaluation for the veteran's service-connected
prostatitis under the provisions of 38 C.F.R. � 3.321(b)(1)
have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218 (1995).

ORDER

Service connection for a renal cyst is denied.

An evaluation in excess of 10 percent for prostatitis is
denied.

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs