Citation Nr: 1335975 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-38 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of a kidney injury, including an atrophic right kidney. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from November 1951 to November 1955. This matter is before the Board of Veteran's Appeals (Board) on appeal of a rating decision in January 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2011, the Veteran withdrew his request for hearing before the Board. 38 C.F.R. § 20.702(e). In October 2011, the Board remanded the case for further development. In February 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from an independent medical examiner. The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which the Veteran did in May 2013. In July 2013, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT An inservice injury caused a kidney disability, including an atrophic right kidney. CONCLUSION OF LAW The criteria for service connection for a kidney disability, including an atrophic right kidney, have been met. 38 U.S.C.A. §§ 1110, 1131, 15107(b) (West 2002), 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the appeal is granted in full, VCAA compliance need not be addressed. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § § 1110 and 1131. To establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for a 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). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran was not engaged in active combat with the enemy during active duty so combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). Evidence The service personnel records show that between March 1952 and January 1953 the Veteran served aboard the USS Salisbury Sound (AV-13). The Veteran contends that in October 1952 the USS Salisbury encountered a typhoon, while his assigned duty station was in the dental department, an X-ray machine broke loose from a bulkhead and hit him in the back, knocking him unconscious, and that he was treated and confined to sick bay for four weeks before he could walk and return to work. The Veteran states that he has experienced kidney trouble since the injury. He maintains that this injury caused his current kidney disability. Lay statements authored by two of the Veteran's shipmates affirm that the Veteran spent several weeks in sick bay after the accident and state that they observed the Veteran experience kidney trouble after the accident. The service treatment records, including the reports of entrance and separation examination, contain no complaint, finding, history, symptom, treatment, or diagnosis of a kidney disability. In August 2013, the RO made a formal finding of unavailability of the Veteran's sick bay logs related to his active service on board the USS Salisbury between October and November 1952. The RO stated that all attempts to obtain such records have been unsuccessful and further efforts would be futile. Since June 2005, Dr. Suki, MD, has treated the Veteran for kidney problems. Dr. Suki is a Board Certified physician, who served as President of the American Society of Nephrology for two years and as Chief of Nephrology at Baylor College of Medicine for 32 years. In June 2009, Dr. Suki submitted the following statement to VA: The etiology of the chronic kidney disease and proteinuria is thought to be the result of injury to the right kidney resulting in atrophy of the right kidney, and leading to hyperfunctioning of the remaining kidney, culminating in focal glomerular sclerosis and proteinuria. The Veteran related that while in the Navy on ship in 1952 during a typhoon, an X-ray machine came loose and hit him in the back. The Veteran relates that he experienced severe pain and hematuria and had to be laid to bed for several days before recovering from the injury. It is my opinion that the injury described above is the proximate cause of the atrophy of the right kidney and that the injury resulted directly in the progressive deterioration of kidney function and the development of proteinuria. In response to a July 2009 rating decision that denied service connection, Dr. Suki submitted a statement contesting the RO's decision and reasserting his opinion that the Veteran's present kidney condition was directly related to the injury he sustained in service. In November 2011, Dr. Suki added that the inservice injury irreparably damaged the right kidney resulting in atrophy and loss of function. This in turn resulted in hypertension and progressive loss of function in the contralateral kidney. On VA examination in August 2012, the Veteran stated that he experienced kidney troubles after a heavy piece of X-ray equipment fell on him during service. The VA examiner expressed the opinion that current kidney disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no record of any injury as described by the Veteran, the service records did not coincide with the history of an injury, the Veteran denied any problems on discharge examination, the discharge urinalysis was normal, and Dr. Suki resorted to speculation regarding an injury that occurred many decades before he treated the Veteran without access to the prior medical records. The VA physician stated that the atrophy of the kidney and a small renal artery may very well explain the current renal condition. In February 2013, the Board obtained a medical expert opinion from an independent medical examiner (IME). For the purpose of the opinion, the Board advised the IME that the Veteran was competent to describe the injury and the Veteran and his witnesses were credible. The IME, an Assistant Professor in the Division of Nephrology at a state university school of medicine, was asked to provide opinion as to the following: 1). Whether it was more likely than not (probability greater than 50 percent) at least as likely as not (probability of 50 percent) less likely than not (probability less than 50 percent), that the current atrophic right kidney was related to the Veteran s history of an injury in service? In response to Question 1, the IME stated that it was less likely than not that the current atrophic kidney was related to the Veteran's injury, because the Veteran had extensive atherosclerotic disease and a history of coronary artery disease, requiring revascularization and a stent placement. In addition, the Veteran had a TIA in 1996 and two episodes of stroke in 2011. The IME stated that the presence of diminutive right renal artery on MRI further supported the presence of atherosclerotic renovascular disease leading to atrophic kidney. The IME explained that patients with extrarenal atherosclerosis often have concurrent renal artery stenosis that can lead to atrophic or small kidneys. The IME stated that the medical information available did not indicate that the atrophic kidney could be the result of injury. In the light of the current available information it was more likely than not that the atrophic kidney was the result of atherosclerotic renovascular disease than an injury. 2). The clinical significance of the specific gravity of 1.016 on urinalysis on separation examination. In response to Question 2, the IME stated that specific gravity measures the urine concentration and can vary under different circumstances. It would not contribute to any clinical significance. 3). The clinical significance of the findings by MRI, for example, the diminutive right renal kidney artery, as other risk factors for developing an atrophic right kidney apart for an injury. In response to Question 3, the IME stated a MRI finding of a diminutive right renal artery as mentioned above indicate that possible atherosclerotic renovascular disease could have contributed to the atrophic kidneys. With the information available it was difficult to say for sure that the injury resulted in the finding. All other testing was suggestive of extensive atherosclerotic disease which could potentially lead to renovascular disease and ultimately atrophic kidneys. 4). The clinical significance that after service an atrophic right kidney by MRI was first documented in 2005, more than 50 years after the injury described by the Veteran in 1952. In response to Question 4, the IME stated that the finding of unilateral atrophic kidney is at times incidental, because the remaining kidney is able to compensate for the loss. Unless a patient develops disease or injury affecting the contralateral kidney, the finding can go unnoticed for years. This is exactly what happened in this Veteran's case. The MRI incidentally discovered the finding almost 50 years later. Analysis The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of a kidney disability. On the basis of the service treatment records alone, a kidney disability was not affirmatively shown to have been present during service. And service connection under 38 U.S.C.A. § 1110 and § 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. The Veteran has stated that he has experienced kidney trouble since a heavy piece of X-ray equipment fell on him during service. Letters authored by several of his shipmates support his assertions. Although no official record of the injury has been found, the Board finds the Veteran competent to describe the injury and the Veteran's account and that of his witnesses are credible. As for the medical evidence, competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). The competent medical evidence of record pertaining to causation or a nexus to service favorable to the claim consists of the opinion of Dr. Suki. From the evidence cited in the favorable medical opinion the Board finds that the significant facts of the case include that the Veteran had experienced kidney trouble since a heavy piece of X-ray equipment fell on him during service. Based on the facts, Dr. Suki stated that the injury caused atrophy of the right kidney which lead to hyperfunctioning of the remaining kidney and culminated in focal glomerular sclerosis and proteinuria. The competent medical evidence of record pertaining to causation or a nexus to service against claim consists of the opinions of a VA physician and an IME. A VA examiner expressed the opinion that the current kidney disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The IME expressed the opinion that it was less likely than not that the current atrophic kidney was related to the Veteran's inservice injury. However, the IME did not rule out that the inservice injury could have caused the Veteran's current disability. Whereas here the essential facts are not disputed and the same set of facts have resulted in contradictory opinions, the Board finds that there is an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim of service connection. As there is a reasonable doubt, which is resolved in the Veteran's favor, service connection is warranted. As the claim is decided on the basis of the medical evidence, the Board need not reach the Veteran's lay evidence, except for the Veteran describing the in-service injury and the statements of former shipmates, which is competent and credible lay evidence. ORDER Service connection for residuals of a kidney injury, including an atrophic right kidney, is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs