Citation Nr: 1603948	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  12-35 484	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to service connection for renal insufficiency, status left kidney nephrectomy, to include as aggravated by service-connected diabetes mellitus type II. 


ATTORNEY FOR THE BOARD

Christopher M. Collins, Associate Counsel










INTRODUCTION

The appellant is a Veteran who served on active duty from March 1959 to September 1967.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2011 by a Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. 

In a November 2015 decision and remand, the Board remanded the case to the Appeals Management Center (AMC) in Washington, D.C. for additional development of the evidence, to include obtaining a new medical opinion as to the etiology of the Veteran's currently diagnosed renal insufficiency.  The AMC thereafter arranged for a new medical opinion in November 2015 and subsequently issued a supplemental statement of the case (SSOC) in December 2015 maintaining the denial of the Veteran's claim of service connection for renal insufficiency.  The case was then returned to the Board for its further consideration.  

The Veteran's claims file is entirely electronic, using "Virtual VA" and the "Veterans Benefits Management Systems" (VBMS) databases. 


FINDING OF FACT

The competent medical evidence does not demonstrate that the Veteran's currently diagnosed renal insufficiency, status left kidney nephrectomy, is attributable to the Veteran's active service or any incident of service, to include as aggravated by service-connected diabetes mellitus type II. 


CONCLUSION OF LAW

Service connection for renal insufficiency, status left kidney nephrectomy, to include as aggravated by service-connected diabetes mellitus type II, is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).
REASONS AND BASES FOR FINDING AND CONCLUSION

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, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim.  Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim.  Furthermore, as part of the notice, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will obtain.  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).  Pursuant to its obligations under the VCAA, VA is required to provide notice to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). 

The RO provided the Veteran with pre-adjudication VCAA notice via letter dated in December 2010.  The Veteran was notified of the evidence needed to substantiate his claims for service connection and that VA was responsible for obtaining military service records, records from VA medical centers (VAMCs), or records in the custody of other agencies, so long as the Veteran adequately identified those records and authorized VA to obtain those records.  The Veteran was also informed that he could submit records not in the custody of a federal agency on his own behalf or authorize VA to obtain such records, and that the Veteran was ultimately responsible for obtaining any requested records not in the custody of a Federal department or agency.  Finally, the letter notified him of the criteria that VA utilizes when determining the disability rating and the effective date of awards. 

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claims.  The RO has obtained the Veteran's service personnel and treatment records, as well as treatment records from the Fort Meade, South Dakota and Salt Lake City, Utah VAMCs.  The Veteran also submitted statements regarding his claim.  In addition, the Veteran was afforded the opportunity to testify and present evidence at an informal hearing at the RO in November 2013.  The Veteran has not identified any additionally available evidence for consideration. 

VA has conducted medical inquiry in the form of VA compensation examination to substantiate the claim of service connection.  38 U.S.C.A. § 5103A.  The Veteran was first afforded a VA examination in January 2011 to evaluate whether the Veteran's currently diagnosed renal insufficiency was secondary to or aggravated by his diabetes mellitus type II.  Thereafter, the Veteran was afforded a new VA examination in May 2013 for the purpose of determining whether the Veteran's renal insufficiency was aggravated beyond its natural progression by diabetes mellitus type II.  That May 2013 VA examination was followed up by a July 2013 VA examination for the purpose of clarifying the rationale provided for the opinion espoused by the examiner.  The Veteran was again afforded a VA examination in June 2014 following a March 2014 Board remand.  After another Board remand in January 2015, the Veteran was afforded a new VA examination in May 2015 in order to provide an opinion as to whether the Veteran's renal insufficiency was at all related to any incident of his service, to include exposure to herbicides.  Finally, as discussed in detail below, the Veteran was afforded a new VA examination in November 2015 in response to a November 2015 Board remand, for the purpose of reconciling two conflicting opinions from former VA examinations regarding the etiology of the Veteran's renal insufficiency.  As the VA examiners in each of these exams considered the Veteran's history and provided a rationale for the conclusions reached, the Board finds that these opinions are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

Pursuant to the Board's November 2015 remand, the AMC was directed to schedule the Veteran for a VA examination to determine whether any portion of the Veteran's current renal insufficiency was aggravated by his service-connected diabetes mellitus, to specifically include a discussion of conflicting opinions espoused by VA examiners in former VA examinations.  The Veteran was thereafter afforded a VA examination in November 2015, wherein the examiner reviewed the Veteran's entire claims file and offered an opinion as to whether the Veteran's current renal insufficiency was aggravated by his diabetes mellitus type II.  The examiner reported that she specifically reviewed the examinations featured by the Board in its remand and discussed why one opinion had a more reasoned rationale than the other.  In light of the fact that the examiner explicitly discussed those examinations outlined in the Board's remand, the Board finds that the AMC substantially complied with the Board's remand directives as to the renal insufficiency claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D 'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" as opposed to strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

In recognition of these efforts by the RO to obtain the known evidence that may substantiate the Veteran's claim, and it being clear that the Veteran has not indicated that there exists additional evidence to support his claim, the Board concludes that no further assistance is required to be provided to the Veteran in developing the facts pertinent to his claim in order to comply with the duty to assist.  

Legal Criteria

VA may grant service connection for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  
Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred during service, or, if the injury or disease preexisted such service, a showing that the injury or disease was aggravated therein.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). 

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  Secondary service connection is permitted based on aggravation.  Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability.  Id.; Allen v. Brown, 7 Vet. App. 439 (1995).  

Notwithstanding the above, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

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")). 

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).  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Factual Background and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378. 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but has no concurrent obligation to discuss each piece of evidence in rendering a decision.). Accordingly, the Board will summarize the relevant evidence before it and focus its analysis on what that evidence illustrates about the Veteran's claim. 

An overview of the case indicates that the Veteran filed his application for VA disability compensation in November 2010.  The Veteran contends that his currently diagnosed renal insufficiency, which developed following a left nephrectomy in November 2006, was aggravated by his service-connected diabetes mellitus type II. 

The Veteran's service personnel records show that he served on active duty from March 1959 to September 1967.  The Veteran's service treatment records (STRs) are silent as to any complaint, findings, treatment, or diagnoses relating to renal insufficiency.  On the basis of the STRs alone, the Veteran has not set forth sufficient evidence that he developed renal insufficiency during service.  Thus, service connection under 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) is denied. 

With regards to the Veteran's assertion that his renal insufficiency was aggravated by his service-connected diabetes mellitus type II, a nephrology consultation at the Ft. Meade VAMC dated in August 2009 indicates that renal insufficiency was first noted in April 2007, five months after the Veteran had a left nephrectomy in November 2006 to remove a grade 2-3 transitional cell cancer.  Outpatients reports from the Ft. Meade VAMC dating from March 2008 to October 2015 show that the Veteran has continued to have documented renal insufficiency since abnormal creatinine levels were noted in April 2007.  In the August 2009 nephrology consultation, the examiner stated that the Veteran's "rise in the serum creatinine [an indication of renal insufficiency] can certainly be attributed to his nephrectomy." 

According to a June 2008 primary care attending note from the Ft. Meade VAMC, the Veteran was upgraded from impaired fasting glucose to diabetes type II as a result of his glucose levels remaining at an elevated level for the previous four years.  Outpatient records from the Ft. Meade VAMC indicate that the Veteran was first diagnosed with impaired fasting glucose in January 2006, with that diagnoses continuing until the June 2008 upgrade to diabetes type II.  Outpatients records from June 2008 to October 2015 show that the Veteran had to stop treating his diabetes mellitus type II with medication because of complications between the diabetes medication and his renal insufficiency, and thus he treated his diabetes primarily through diet.  In a February 2009 primary care attending note from the Ft. Meade VAMC, the Veteran was first assessed with nephropathy associated with his diabetes mellitus type II.  No other medical records from a VAMC document any relationship between the Veteran's diabetes type II and his renal insufficiency except a July 2015 diagnostic testing result letter prepared by the Fort Meade VAMC which stated that the Veteran's "kidney function is mildly reduced, related to your diabetes." 

The Veteran's renal insufficiency was first evaluated by a VA examiner in a January 2011 VA examination that primarily evaluated the Veteran's separate claim of service connection for diabetes mellitus type II.  In that examination, the examiner noted that the Veteran experienced renal impairment, but stated that "[t]he renal condition is not a complication of diabetes because it occurred with nephrectomy."  However, the examiner also stated later on in the examination that the Veteran's "renal impairment is aggravated by the diabetes.  The diabetes affects renal impairment by its effect on micro and macro vascular complication." 

The Veteran was thereafter afforded a VA examination in May 2013 for the purpose of determining the etiology of his diagnosed renal condition, to include renal insufficiency.  The examiner noted the Veteran's history of left nephrectomy in November 2006 and his diagnosis of diabetes mellitus type II.  After a physical exam and a review of the Veteran's claims file, the examiner concluded that she could not make a determination as to whether the Veteran's renal insufficiency was aggravated by his diabetes mellitus type II due to the fact that there was insufficient medical evidence supporting a diagnosis of diabetes mellitus type II in her opinion.  Having stated that, the examiner did find that the Veteran's kidney cancer was diagnosed and surgery performed in 2006.  She thus concluded that "a natural progression of diabetes in regard to the [kidney cancer] is not an option" as there was no diabetes diagnosis at the time that the kidney cancer was diagnosed and treated. 

The Veteran was afforded a new VA examination in July 2013 to clarify whether the medical evidence existed to maintain his diagnosis of diabetes mellitus type II, and if so, whether his renal insufficiency was aggravated by his diabetes mellitus type II.  After a review of the claims file, the examiner stated that "there is no objective medical evidence to establish a diagnosis of diabetes mellitus type II."  The examiner did not offer an opinion as to whether the Veteran's renal insufficiency was aggravated by his diabetes mellitus type II. 

Following a March 2014 Board decision and remand, the Veteran was scheduled for a new VA examination in June 2014 to reconcile the seeming inconsistencies in the former VA examinations regarding whether the renal insufficiency was aggravated by the Veteran's diabetes mellitus type II.  The examiner reviewed the Veteran's claims file and conducted an in-person examination.  She first noted that the Veteran's STRs are negative for any findings or complaints relating to renal insufficiency.  The examiner also noted that the Veteran was first diagnosed with renal insufficiency in March 2008 and that it was related at that time to the Veteran's lack of a left kidney following his nephrectomy.  The examiner acknowledged that a February 2009 outpatient record found possible diabetes nephropathy; however, the examiner then highlighted the fact that this was never confirmed and that the August 2009 nephrologist consultation discounted any connection between diabetes mellitus type II and the renal insufficiency.  The Veteran was diagnosed with renal insufficiency due to having one remaining kidney.  The examiner then went on to offer the opinion that the Veteran's renal insufficiency was less likely than not proximately due to the Veteran's diabetes mellitus type II.  In support thereof, the examiner noted that the left nephrectomy predated diagnosis of diabetes by two years and that the nephrologist who provided the August 2009 nephrology consultation related the renal insufficiency solely to a lack of left kidney. 

The June 2014 VA examiner was ordered by the Board in a January 2015 remand to provide an addendum opinion to clarify her opinion regarding the etiology of the Veteran's kidney cancer and subsequent renal insufficiency.  The examiner thereafter provided an opinion in May 2015, whereby she maintained her conclusion that the Veteran's kidney cancer was less likely than not related to military service, to include exposure to herbicides.  In support thereof, the examiner first noted that there was no complaints or treatments related to a renal condition in the Veteran's STRs.  She then refuted the Veteran's contention that his kidney cancer was related to herbicide exposure, and made reference to a substantial degree of medical literature which found no connection between herbicide exposure and renal cancer.  The examiner also referred to medical literature that found that smoking, hypertension, obesity, exposure to cadmium, asbestos, and some petroleum products were all risk factors for renal cancer.  She concluded by noting that the Veteran's history of smoking and working in an automobile plant "more than likely contributed towards to cancer with subsequent nephrectomy and renal insufficiency." 

The most recent VA examination in November 2015 was offered to the Veteran following another Board decision and remand in November 2015.  This examination sought to again reconcile prior examinations that offered conflicting opinions as to whether the Veteran's renal insufficiency was aggravated by his diabetes mellitus type II.  After a review of the Veteran's claims file, the examiner first noted that the Veteran had normal renal function under the November 2006 nephrectomy, after which he had mild elevation in creatinine and microablumin indicating renal insufficiency.  The examiner related this elevation solely to the lack of a left kidney and highlighted the fact that the Veteran had not been diagnosed with diabetes at this time.  Thereafter, as acknowledged by the examiner, the kidney function remained unchanged when the Veteran was diagnosed with diabetes in March 2008.  According to the examiner, the Veteran's kidney function remained unchanged during the time period when the Veteran was prescribed diabetes medication and then stopped using the medication in favor of treating his diabetes through diet.  The examiner also added that the 2011 examiner who suggested that the Veteran's renal insufficiency was aggravated by his diabetes mellitus type II 
"did not provide a detailed review of kidney/renal function before nephrectomy, post-nephrectomy, at the time he was diagnosed with diabetes, compared to the results noted during 2011 exam." 

Although the Board acknowledges that there are conflicting opinions in the Veteran's medical history as to the relationship between the Veteran's renal insufficiency and his diabetes mellitus type II, it is the Board's judgment that the preponderance of the evidence is against the Veteran's claim of service connection for renal insufficiency, to include as aggravated by diabetes mellitus type II.  When weighing the probative value of conflicting medical opinions, the Board is cognizant that a VA medical examiner's opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008).  Furthermore, a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion.  Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).  The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  

Here, as noted by the November 2015 VA examiner, the January 2011 VA examiner did not provide a rationale in support of his opinion that the Veteran's renal insufficiency was aggravated by his diabetes mellitus type II, but instead merely stated that "[t]he diabetes affects renal impairment by its effect on micro and macro vascular complication."  Most importantly, the January 2011 examiner did not establish a baseline of renal function before the onset of the Veteran's diabetes in March 2008 in order to evaluate whether the renal function worsened after the Veteran was diagnosed with diabetes, as opposed to the November 2015 VA examiner who provided a detailed analysis of the Veteran's renal function before, during, and after the March 2008 diabetes diagnosis.  Without a reasoned rationale to explain his opinion regarding aggravation, the January 2011 examiner's conclusion that the renal insufficiency was aggravated by the diabetes mellitus type II lacks significant probative value.  Similarly, the outpatient reports in February 2009 and July 2015 that suggested that there was a connection between renal insufficiency and diabetes mellitus type II lack probative value because they are not supported with a sufficient rationale.  By contrast, the November 2015 and June 2014 VA examiners who both opined that there was no connection between the Veteran's renal insufficiency and diabetes mellitus type II supported their opinions with reference to the Veteran's medical history of left nephrectomy in November 2006 and an analysis of the Veteran's renal function following the nephrectomy.  The Board therefore finds the June 2014 and November 2015 VA examiner opinions that discounted any connection between the renal insufficiency and diabetes mellitus type II to have far more probative value than the January 2011 VA examiner's opinion and the two outpatient reports in February 2009 and July 2015.  Accordingly, the preponderance of the evidence is against the Veteran's claim of service connection for renal insufficiency, to include as aggravated by his service-connected diabetes mellitus type II. 

The Veteran may still be entitled to service connection for his renal insufficiency if all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  However, in recognition of the absence of evidence tending to show incurrence in service or a nexus between an event in service and the Veteran's current renal insufficiency, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran developed renal insufficiency in service or that his renal insufficiency is otherwise attributable to service.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Service connection for renal insufficiency under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim in total must be denied. 

As the preponderance of the evidence is against the Veteran's claim of service connection for renal insufficiency, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

ORDER

Service connection for renal insufficiency, to include as aggravated by diabetes mellitus type II, is denied. 




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs