Citation Nr: 1340449 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-24 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a kidney disability. REPRESENTATION Appellant represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this issue in November 2012 to schedule the Veteran for a travel Board hearing. The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is of record. The Board observes that new pertinent VA treatment records were associated with the claims file after the issuance of the last supplemental statement of the case in May 2011. Nonetheless, the Board will not refer this evidence to the RO for initial review, because the benefit to which the evidence relates can be granted in full on appeal without such referral. See 38 C.F.R. § 20.1304(c) (2013). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. FINDING OF FACT The medical evidence of record reflects that the Veteran had symptoms of a chronic kidney disorder in service with a continuity of recurrent symptoms since service that resulted in a diagnosis of glomerulonephritis and chronic kidney disease, stage 3 within one year after discharge from military service. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran's favor, glomerulonephritis and chronic kidney disease, stage 3 was incurred during active military service. 38 U.S.C.A. §§ 1110, 1132 (West 2002); 38 C.F.R. §§ 3303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (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 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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. II. Criteria and Analysis The Veteran asserts that his current kidney disorder began during active military service. He explained that he was diagnosed with proteinuria or high protein count in service with a continuity of recurrent proteinuria after service that resulted in a diagnosis of chronic kidney disease. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be presumed for certain chronic diseases that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). In assessing the Veteran's service connection claim for a kidney disorder, the Board must first determine whether the Veteran has a current diagnosis of the claimed disability. A June 2008 private treatment record reveals that the Veteran has a current diagnosis of chronic kidney disease, stage 3, with subnephrotic proteinuria. The physician noted that the proteinuria is probably related to low-grade glomerulonephritis. However, the Board observes that a VA examiner in March 2010 provided the opinion that the Veteran had mild intermittent proteinuria with elevation in creatinine with no other residuals. He explained that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. He also determined that there was no objective evidence of pathologic chronic kidney disease at this time. The Board observes that the Veteran's private treatment records consistently indicate that the Veteran has had chronic kidney disease since he was diagnosed in 2006. In light of the foregoing and giving any benefit of the doubt in favor the Veteran, the evidence of record shows that the Veteran has a current diagnosis of a kidney disorder. The Veteran's service treatment records do not show that the Veteran was diagnosed with a kidney disorder in service. However, a March 2003 service treatment record indicates that the Veteran had increased creatinine and an April 2003 service treatment record documents that the Veteran had increased proteinuria and he was taking Avapro. A June 2003 service treatment record notes that the Veteran had increased creatinine and proteinuria and he stopped protein supplements two months ago. Furthermore, the medical evidence of record shows that the Veteran was diagnosed with glomerulonephritis and chronic kidney disease within one year of discharge from active military service. Nephritis or cardiovascular-renal disease that become manifest to a degree of 10 percent or more within one year from the date of discharge will be considered to have been incurred in service. See 3.307(a)(3) and 3.309(a). Based on the evidence of record, it appears that the kidney disability did not become manifest to a compensable degree within one year from active military service. See 38 C.F.R. § 4.115a. Nonetheless, the evidence of record shows that the Veteran had recurrent proteinuria and elevated creatinine in service. Furthermore, urine tests within the first year of discharge show that the Veteran had mild proteinuria, which was determined to indicate that the Veteran most probably had low level glomerulonephritis. In October 2006, the Veteran was also diagnosed with chronic kidney disease, stage 3. Furthermore, a June 2008 private treatment record reflects that the Veteran has chronic kidney disease, stage 3 and low-grade glomerulonephritis. Thus, the Board finds that the medical evidence of record shows the Veteran had symptoms of a chronic kidney disease in service with a continuity of recurrent symptomatology since service that resulted in a diagnosis of chronic kidney disease and glomerulonephritis within one year of discharge from service. In light of the foregoing, the Board concludes that that the evidence of record is at least in equipoise with respect to whether the Veteran's current diagnosis of chronic kidney disease and glomerulonephritis was incurred during active military service. Thus, entitlement to service connection for a kidney disorder is warranted. ORDER Entitlement to service connection for glomerulonephritis and chronic kidney disease, stage 3 is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs