Citation Nr: 1306947 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 04-09 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for glomerulonephritis, claimed as a kidney disorder, with hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to November 1971, and April 1975 to June 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the RO. In February 2006, the Veteran testified at a hearing held at the RO before a Veterans Law Judge who has subsequently retired. A transcript of the hearing has been associated with the Veteran's claims file. In a February 2007 decision, the Board reopened the previously denied claim of service connection for a psychiatric disorder. That newly reopened claim, along with the claim of whether new and material evidence had been received to reopen the claim captioned hereinabove, were remanded for further development. In June 2009, the Veteran was notified that the Judge who had conducted his 2006 hearing was no longer employed by the Board and was afforded the opportunity for a new hearing. That month, the Veteran indicated his desire to attend another hearing before a Veterans Law Judge at the RO. In July 2009, the Board remanded the case in order to afford the Veteran another hearing, as requested. In October 2009, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In a February 2010 decision, the Board denied the claim of service connection for an innocently acquired psychiatric disorder. The above-captioned matter was reopened and remanded for additional development of the record. The Veteran appealed the February 2010 decision denying the claim of service connection for a psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court vacated the February 2010 decision and remanded the matter back to the Board for development consistent with the parties' Joint Motion for Remand and to Stay Proceedings (Joint Motion). In February 2011, the Board remanded the claim for an innocently acquired psychiatric disorder to the RO for additional development. In a March 2012 rating decision in March 2012 , the RO awarded service connection for posttraumatic stress disorder with obsessive compulsive disorder and anxiety, removing that matter from appellate status. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In July 2012, the Board remanded the claim captioned above for other development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's preexisting glomerulonephritis with hypertension is shown as likely as not to have increased in severity beyond natural progression during his second period of active service. CONCLUSION OF LAW As the Veteran's preexisting disability manifested by glomerulonephritis with hypertension is not clearly and unmistakably shown not to have been aggravated by active service, the presumption of aggravation is not rebutted. 38 U.S.C.A. §§ 1110, 1131, 1132, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance A discussion addressing whether VA's duties to notify and assist the Veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the Veteran in the development of his claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the Veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered, or disease contracted, in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Every 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 the examination, acceptance and enrollment. 38 U.S.C.A. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disability. 38 C.F.R. § 3.304(b)(1). Determinations of whether a condition existed preservice should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). VA must show by clear and unmistakable evidence that the pre-existing disease or disorder was not aggravated during service and the claimant is not required to show that the disease or injury increased in severity during service. See VAOPGCPREC. 3-03 (July 16, 2003) (69 Fed. Reg. 29178 (2004). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). Here, the Board finds that the presumption of soundness at entry has been rebutted in that the Veteran is clearly and unmistakably found to have entered active service with glomerulonephritis with hypertension. While glomerulonephritis with hypertension was not noted on the Veteran's entrance examination, other evidence establishes the preexisting nature of the disorder. A Medical Board Report from October 1971 determined that the Veteran's chronic glomerulonephritis existed prior to entry. Moreover, a VA examiner in April 1996 opined that the Veteran's "existing renal disease most likely occurred pre-military entrance." An August 2012 VA examiner found that "there [was] clear and unmistakable evidence of a kidney disorder that existed prior to his active duty period beginning in July 1971." The August 2012 examiner based this opinion on a review of the medical literature regarding IGA nephropathy/Berger's disease/focal segmental glomerulonephritis. The exact cause of the Veteran's disorder is unclear, but it involves a very complex interplay of molecular immune abnormalities in the body's production and processing of IGA. Additionally, the examiner relied on a 1971 service record showing that there had been evidence of albuminuria one year previously (prior to enlistment). Based on all of this evidence, the Board finds the Veteran entered service with a preexisting kidney disorder manifested by glomerulonephritis. Having determined that the Veteran entered service with glomerulonephritis in 1971, the next step involves examining whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). If there is an increase in severity, there is a rebuttable presumption of aggravation. 38 U.S.C.A. § 1153. The service treatment records show that, in September 1971, the Veteran presented with what appeared to be rhabomyolysis. He had noticed that, in the previous three days, his urine had darkened to resemble coffee. He felt reasonably well except for fatigue and flank pain after urination. The Veteran was hospitalized for three weeks and developed severe flank pain, aggravated by urination. He was diagnosed with chronic glomerulonephritis. In late October 1971, a Medical Board recommended his discharge based on this disorder. In March 1973, prior to his second period of active service, the Veteran was noted to have suffered a bout of acute glomerulonephritis and was hospitalized. He complained of hematuria, a sore throat, chills, fever, malaise, nausea, anorexia and a continuous throbbing frontal headache. He had pain in the lumbar region radiating to lower abdominal quadrants. Urinary symptoms included pollakiuria and dysuria. He was diagnosed with acute glomerulonephritis, probably of streptococcal etiology. The Veteran then reenlisted and returned to active service. In January 1978, after about two years of service, he was again admitted to the hospital for left flank pain and dark urine. He noted having a 20 pound weight gain in the two weeks prior to admission. The laboratory studies showed glomerulonephritis of an undetermined etiology or type. He also manifested mild hypertension. A renal biopsy was performed. He was diagnosed with glomerulonephritis with hypertension. In March 1978, another renal biopsy was performed. The impression was of focal and segmental glomerulonephritis, IGA nephropathy. It was noted that the histolic features of the case were consistent with an "advanced stage" of the disease, as compared with the "usual IGA nephropathy." In a May 2005 notation, a private physician noted that the Veteran lost function of his left kidney in service and that the left kidney was currently totally non-functional. The right was functioning at 50 percent, according to the Veteran. The Board finds this evidence supports an increase in severity of the Veteran's kidney disorder during service. During service, he was hospitalized several times, and, according to the May 2005 SSA record, his left kidney had ceased functioning. He was also discharged from this second period of active duty due to his condition. Having found an increase in severity during service, it is presumed that the kidney disorder was aggravated by service. 38 U.S.C.A. § 1153. While this presumption is rebuttable, the Board here cannot find that the evidence "clearly and unmistakably" establishes that aggravation did not occur. In the October 1971 report, a box was checked indicating that the Veteran's chronic glomerulonephritis existed prior to service and was not aggravated by service. No explanation for this finding was included. The VA examiner in April 1996 opined that it was "very unlikely" that active military service aggravated the Veteran's renal disease. No explanation for this finding was included. The VA examiner in August 2012 opined that the Veteran's kidney condition was not aggravated beyond normal progression by or during either of his tours of active duty. The examiner essentially presented two reasons in rationale. One, the examiner found that, according to the literature, acute recurrences were "not uncommon" during the course of the kidney condition. Two, the examiner cited particular laboratory findings obtained in 1978, which revealed measurements within normal limits. The October 1971 and April 1996 reports, which found there was no aggravation, are determined to be of little probative value because no clearly compelling explanation was included for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). The August 2012 report, alone, cannot constitute clear and unmistakable evidence that the kidney disorder was not worsened beyond its natural progression. While the Veteran's laboratory findings in 1978 reported to have been within normal limits, his overall condition appears to have deteriorated. He had been hospitalized several times, and his left kidney is noted to have ceased to function during service. The examiner's reference to the literature that it is "not uncommon" to suffer acute attacks simply does not translate into unmistakable evidence that the Veteran's deterioration was due only to the natural progress of the disease, and was not aggravated by an event or incident of his second period of active service. The March 1978 renal biopsy, which specifically included a notation that the disease was at an advanced stage, on its face, must be construed as showing as likely as not that the renal disease was aggravated beyond its normal course during service. When weighing the August 2012 findings against the remainder of the evidence, the Board finds the evidence is, at very minimum, in equipoise. Again, on this record, the Board cannot find that the evidence "clearly and unmistakably" establishes that aggravation did not occur. For all of these reasons, the Board finds that service connection for the claimed kidney disorder must be granted. On a final note, the Board observes that the kidney claim has been developed, over the lengthy course of its appeal and through two Board hearings, as including hypertension. A review of the record overall indicates that hypertension in this case is a symptom of the Veteran's glomerulonephritis. While hypertension is often developed as a disability in its own right, here, such development is not necessary. It is not necessary to establish that hypertension itself preexisted service or was aggravated thereby. Hypertension here is a symptom of the disability for which service connection is being granted. ORDER Service connection for glomerulonephritis with hypertension is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs