Citation Nr: 1328851	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  10-20 542	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for bilateral hydronephrosis, secondary to uretro-pelvic junction obstruction, status post left nephrectomy for non-functioning kidney and right pyeloplasty (a left kidney disability). 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 


INTRODUCTION

The Veteran served on active duty from September 1970 to February 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that determined new and material evidence had not been submitted to reopen the claim for service connection for a kidney disability.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the claim.  These documents have been considered in reviewing the Veteran's claim below.  


FINDINGS OF FACT

1.  Service connection for a kidney disability was denied in an unappealed September 1972 rating decision; the Veteran was notified of the determination and of his appellate rights but did not appeal and the decision became final.

2.  Evidence received since the September 1972 rating decision relates to an unestablished fact necessary to substantiate the claim.

3.  The evidence does not clearly and unmistakably show that the Veteran's kidney disability was not aggravated during service.



CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim of entitlement to service connection for a kidney disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

2.  Bilateral hydronephrosis, secondary to retro-pelvic junction obstruction, status post left nephrectomy for non-functioning kidney and right pyeloplasty was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board reopens the Veteran's kidney disability claim and grants service connection.  As such, no discussion of VA's duty to notify and assist is necessary.

I.  Claim to Reopen

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

The Veteran's claim of service connection for a kidney disability was previously denied in a September 1972 rating decision.  The Veteran did not file any statement indicating disagreement with the prior decision, or submit relevant evidence within one year following its issuance.  In fact, the next statement received by VA from the Veteran was his December 2008 petition to reopen this claim.  Accordingly, the September 1972 rating decision is now final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013).  

Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7104(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only needs to be probative in regard to each element that was a specified basis for the last disallowance).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

At the time of the prior September 1972 determination, the evidence included the Veteran's service treatment and service personnel records showing an in-service diagnosis of bilateral hydronephrosis secondary to uretro-pelvic junction obstruction, greater on the left than the right, and removal of the left kidney; and, the report of an April 1972 VA examination.  The RO denied the Veteran's claim because there was no evidence the Veteran's congenital kidney disability was permanently aggravated by his military service.  

In December 2008, the Veteran filed a petition to reopen this claim.  The evidence received since the September 1972 rating decision includes the Veteran's testimony during his August 2011 Travel Board hearing attesting to the fact that his kidney disability worsened during service, to the point he underwent a surgical procedure to have the left kidney removed.  

The credibility of this additional evidence is presumed for the limited purpose of determining whether this evidence is new and material.  Justus, 3 Vet. App. 510, 513 (1992).  As such, the Board finds that the new evidence relates to a previously unestablished fact necessary to substantiate the Veteran's kidney disability claim.  Thus, the new evidence raises a reasonable possibility of substantiating the claim.  

II.  Service Connection Claim

In his statements, the Veteran maintains that his kidney disability, if it was pre-existing, was aggravated by his military service.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

The law also provides that a Veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination.  38 U.S.C.A. §§ 1111, 1132.  

If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d at 1096.  A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).

An hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness found in 38 U.S.C. §§ 1111 and 1132.  Service connection may be granted for hereditary diseases that either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service.  See VAOPGCPREC 67-90 (Jul. 1990).  Further, service connection may be granted for congenital diseases.  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009), Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  The presumption of soundness applies if a veteran's congenital disease is not noted at entry.  See Quirin, 22 Vet. App. at 396-97, Monroe, 4 Vet. App. at 515.  When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry.  38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

The evidence of record confirms the Veteran has been diagnosed with bilateral hydronephrosis, secondary to uretro-pelvic junction obstruction, status post left nephrectomy for non-functioning kidney and right pyeloplasty.  Therefore the determinative issue, and focus of the analysis to follow, is whether there is sufficient evidence of a relationship between the Veteran's diagnosed kidney disability and his military service.

Here, there is no entrance examination associated with the Veteran's service treatment records.  The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, Veteran or otherwise, has not been examined contemporaneous to entering a period of active service.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  Thus, the Veteran is not presumed sound upon entry to his period of active duty beginning in September 1970.  The service treatment records do indicate, however, that his kidney disability, for which he was treated in service, was probably congenital.  Further, during the Veteran's August 2011 Travel Board hearing, he also stated that he was never questioned about any kidney problems prior to his military service.  Accordingly, the Board finds that the Veteran's kidney disability was a pre-existing condition to his active duty. 

As the presumption of soundness does not apply, the evidence must establish that aggravation of the Veteran's kidney disability occurred during service.  As stated above, 38 U.S.C.A. § 1153 contains a presumption of aggravation when it is shown that a pre-existing disorder underwent an increase in disability during service. 

The service treatment records show the Veteran sought medical treatment for pain and blood in his urine.  He was diagnosed with bilateral hydronephrosis secondary to uretro-pelvic junction obstruction, greater on the left than the right, and also had surgery for the removal of the left kidney.  The Veteran's medical records also indicated that the kidney disability was probably congenital.  A January 1971 Line of Duty Determination specifically noted that the Veteran's kidney disability was incurred in the line of duty and aggravated by service.  Following this surgical procedure in January 1971, he was found to be not qualified for medical service.  

Considering all of the evidence together, and resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that his kidney disability was aggravated by his military service.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The Veteran entered service with a congenital kidney disability.  During service, this congenital disease became symptomatic in 1971 and progressed at an abnormally high rate to the point the Veteran had his left kidney removed during service.  See VAOPGCPREC 67-90 (Jul. 1990).  Following treatment in service, he was found to be not qualified for military service and was separated in February 1971.  Thus, the presumption of aggravation attaches for this claim. 

The evidence shows that the Veteran's kidney disability increased in severity during service.  In this case, there is no countervailing evidence to refute the Veteran's competent and credible account, which is also supported by the service treatment records.  Thus, resolving all reasonable doubt in his favor, the Board finds that service connection is warranted..




ORDER

New and material evidence having been received, the claim of entitlement to service connection for a kidney disability is reopened.

Service connection for bilateral hydronephrosis, secondary to uretro-pelvic junction obstruction, status post left nephrectomy for non-functioning kidney and right pyeloplasty is granted. 





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs