Citation Nr: 0809871 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-16 661A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for progressive proliferative glomerulonephritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his mother ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran served on active duty from September 1999 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The veteran testified before the undersigned Acting Veterans Law Judge in August 2005. In August 2006 the Board remanded the issue on appeal to the RO via the Appeals Management Center (AMC) for further development. FINDINGS OF FACT 1. Progressive proliferative glomerulonephritis was not noted at the time of entry into active duty, and the veteran is presumed to have been in sound condition. 2. The evidence of record does not established that progressive proliferative glomerulonephritis clearly and unmistakably existed prior to service. 3. The presumption of soundness has not been rebutted. 4. Resolving all reasonable doubt in favor of the veteran, progressive proliferative glomerulonephritis was incurred during service. CONCLUSION OF LAW Progressive proliferative glomerulonephritis was incurred in service. 38 U.S.C.A. §§ 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002). Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b) (2003). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence that (1) the condition existed prior to service, and (2) the condition was not aggravated by service. The claimant is not required to show that the condition increased in severity in service before VA's duty under the second prong of the rebuttal standard attaches; since 38 C.F.R. § 3.304(b) conflicts with 38 U.S.C.A. § 1111, the C.F.R. section is invalid and should not be followed. VAOPGCPREC 003-03 (July 16, 2003). The United States Court of Appeals for Veterans Claims (Court) has defined the word "unmistakable" as an item cannot be misinterpreted and misunderstood, i.e., it is undeniable." Vanerson, 12 Vet. App. at 258 (quoting WEBSTER'S NEW WORLD DICTIONARY 1461 (3rd Coll. Ed. 1988)). See also Crippen v. Brown, 9 Vet. App. 412 (196). The veteran's service medical records revealed that in December 2002 the veteran was diagnosed with kidney progressive proliferative glomerulonephritis IgA nephropathy. His service medical records indicate that he first complained of hematuria in July 2000; an x-ray was conducted and a kidney ultrasound biopsy was normal. The veteran again complained of hematuria in June 2001 which revealed hemorrhagic cystitis, resolving and improved. In August 2001, he complained of the same symptoms and was diagnosed with bleeding consistent with a urinary tract infection. A June 2002 diagnosis was hematuria and a September 2002 ultrasound revealed an unremarkable study of the kidneys. In an October 2002 report a private nephrologists indicated the veteran had hematuria and proteinuria with active urinary sediment. He noted the veteran had a strong family history in that his father had end-stage kidney disease secondary to membranoproliferative glomerulonephritis type II. He also stated that this "certainly may suggest a hereditary form of kidney disease." He diagnosed the veteran with IgA glomerulonephritis. A November 2002 Medical Evaluation Board determination and a December 3, 2002, Physical Evaluation Board determination both indicated that the veteran incurred his kidney disorder in service. However, a December 19, 2002, Physical Evaluation Board determination indicated that the veteran's kidney disorder must have existed prior to service because the first symptoms emerged during basic training. It also stated that the kidney disorder was not permanently aggravated in service and increased only to the extent of its accepted normal and natural progress. At the veteran's July 2007 VA examination, the VA examiner stated that the veteran had current IgA nephropathy with persistent significant proteinuria and microscopic hematuria on current urinalysis. The VA examiner stated that the claims file did not have medical records prior to 2001; however, he stated that all available records report that frank hematuria dated to basic training. He stated that the development of frank hematuria could "almost certainly be preceded by a period of asymptomatic disease suggesting that the veteran's condition predated basic training." He concluded it was more likely than not that the onset of IgA nephropathy predated military service although more precise estimate of date of onset was not possible. The VA examiner stated there was no evidence in the military records of any unusual stresses during military service, such as hypovolemia with acute renal failure, which would have caused IgA nephropathy, an idiopathic condition to progress beyond it usual natural history. Current renal function remained relatively well preserved, therefore, it was more likely than not that there was no accelerated progression during active duty beyond the usual natural history of IgA nephropathy. After careful review of the evidence of record, the Board finds that the presumption of soundness cannot be rebutted. As stated above, in order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disability existed prior to service and was not aggravated during service. The former cannot be shown based on the evidence of record. For example, the October 2002 private nephrologist stated that the diagnosis of IgA glomerulonephritis "certainly may suggest a hereditary form of kidney disease." In the July 2007 VA examination report, the examiner stated that the development of frank hematuria during basic training could "almost certainly be preceded by a period of asymptomatic disease suggesting that the veteran's condition predated basic training." Such terminology by both physicians does not establish by "clear and unmistakable evidence" that progressive proliferative glomerulonephritis IgA nephropathy existed prior to service. Rather, these opinions show that it is possible and/or probable that such disease process began prior to service, but that is insufficient to rebut the presumption of soundness. Again, that threshold is that the disease process clearly and unmistakably existed prior to service. That standard cannot be met here. Thus, because VA is unable to rebut this first requirement, it need not reach the issue of aggravation. The diagnosis of progressive proliferative glomerulonephritis was shown during the veteran's service. The Medical Evaluation Board had initially determined that the veteran had incurred kidney disease during service. It subsequently determined that the disease existed prior to service and was not aggravated during service. Because the presumption of soundness has not been rebutted and kidney disease was first shown in service, resolving all reasonable doubt in favor of the veteran, service connection for progressive proliferative glomerulonephritis is warranted. ORDER Service connection for progressive proliferative glomerulonephritis is granted. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs