Citation Nr: 1604784	
Decision Date: 02/09/16    Archive Date: 02/18/16

DOCKET NO.  11-26 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a kidney disorder.

2.  Entitlement to service connection for a kidney disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. Hughes, Counsel


INTRODUCTION

The Veteran served on active duty from January 1969 to January 1973. 

This matter is before 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 Houston, Texas.  In December 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record.  At the Travel Board hearing, the Veteran submitted additional evidence with a waiver of RO (Agency of Original Jurisdiction (AOJ)) consideration.  

Service connection for a right kidney disorder was denied by an April 1992 unappealed rating decision.  The question of whether new and material evidence has been received to reopen this claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the matter on a de novo basis.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant.  Jackson, 265 F.3d 1366.  The Board has characterized the claim accordingly.

The reopened claim of service connection for a kidney disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  An unappealed May 1975 rating decision denied service connection for a right kidney disorder, based essentially on a finding that the disorder (malrotation of the right kidney) is a congenital abnormality; an unappealed April 1992 rating decision continued the denial.

2.  The evidence received since the April 1992 rating decision is not cumulative and redundant of other evidence previously of record and raises a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

New and material evidence has been received, and the claim of service connection for a kidney disorder may be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Inasmuch as this decision grants the portion of the claim that is being addressed (reopens the claim), any notice or duty to assist omission is harmless.

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is received.  38 U.S.C.A. § 5108.  

"New" evidence means existing evidence not previously submitted to agency decision makers.  "Material" evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold.  Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

A May 1975 rating decision denied service connection for a right kidney disorder, based essentially on a finding that the disorder (malrotation of the right kidney) is a congenital abnormality.  He did not appeal this decision (or submit additional evidence in the year following) and the decision became final based on the evidence then of record.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  An April 1992 rating decision continued the denial.  The Veteran did not appeal this decision (or submit additional evidence in the year following) and this decision also became final based on the evidence then of record.  Id.

The evidence of record at the time of the April 1992 rating decision included the Veteran's service treatment records, which include a September 1972 finding of "congenital malrotation, right kidney" in connection with treatment for injuries sustained in a motorcycle accident, and his post service treatment records, which show an initial complaint of "kidney trouble" and "dribbling" in September 1991.  The September 1991 treatment report notes that the Veteran reported a 20 year history of these symptoms.  

Evidence received since the April 1992 rating decision (discussed in greater detail in the Remand portion below) include the Veteran's assertion that his bilateral kidney condition is secondary to medication for treatment of his hip (service connection is presently in effect for dislocation right hip with loose bone ossicle to include posttraumatic degenerative joint disease) as well as VA and private treatment records which include opinions relating the Veteran's kidney disease to his to his 20 year history of Motrin use for the treatment of his service connected hip disability.  This evidence was not of record at the time of the prior rating decisions, and is new.  As is noted above, for the purpose of reopening it is presumed credible.  These medical and lay statements are also "material" as they raise a reasonable possibility of substantiating the Veteran's claim.  Accordingly, and in light of the "low threshold" standard for reopening endorsed by the Court in Shade, 24 Vet. App. at 110, the Board finds that the evidence received since the prior final rating decisions is both new and material, and that the claim of service connection for a kidney disorder may be reopened.  

De novo consideration of the claim is addressed in the remand below.


ORDER

The appeal seeking to reopen a claim of service connection for a kidney disorder is granted.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the appellant in the development of facts pertinent to his claim.  See 38 C.F.R. § 3.159.

As noted above, service connection for a kidney disorder has been denied based on a finding that the disorder (malrotation of the right kidney) is a congenital abnormality.  However, the Veteran now claims that service connection for a kidney disorder is warranted because he has developed kidney disease as a result of taking Motrin to treat his service-connected right hip disability.  

Review of the record shows that "it is possible" that the Veteran's kidney disease may be related to his 20+ year use of Motrin or it may be related to multiple factors, including his long history of Motrin use and diabetes.  In pertinent part, the medical opinions consist of the following:  

* A May 2008 VA examination report notes that the Veteran dislocated his hip in the 1972 motorcycle accident, had been placed on Motrin and left on Motrin for 20 years.  The Veteran reported that, in 2006, his nephrologist advised him to stop the Motrin because he had 47 percent kidney function left.  The diagnosis was decreased renal function, stable.  Regarding the question of whether the Veteran's kidney disorder is related to his 20 year history of Motrin use, the examiner opined that it "is certainly a POSSIBLE outcome, but there is no specific way to confirm this supposition."  
* A January 2009 addendum to the May 2008 VA examination report includes the opinion that the examiner does not feel that the Veteran's congenital malrotation of the kidney is related to his kidney failure.  The examiner repeated the opinion that "it is possible" that the Veteran's kidney failure is related to his taking Motrin.  
* Private treatment records include a September 2009 Discharge Summary which notes that the Veteran had acute kidney injury superimposed on chronic kidney disease which was felt to be secondary to hypotension.  It is noted that "with correction of hypotention and volume replacement, his renal function returned to baseline."  The discharge diagnoses included hypotention of uncertain etiology, most likely secondary to medication.  
* A December 2014 statement from the Veteran's private physician includes the opinion that it is "certainly possible that chronic nonsteroidal antiinflammatory drug [NSAID] use in the past (twenty plus years of prescribed high dose ibuprofen) contributed to [the Veteran's] kidney disease."  
* A January 2015 private treatment report notes that the "etiology of [the Veteran's] chronic kidney disease is likely multifactorial from NSAID nephropathy (was taking Motrin for approximately 20 years at high doses), hypertensive nephrosclerosis, diabetic nephropathy."

As to the finding of congenital malrotation of the right kidney, it is noted that congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9.  Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993).  Further, service connection for a disease (as opposed to a defect) of congenital or familial (hereditary) origin may be granted if the disease did not manifest until after entry into service or was aggravated during service beyond its natural progression.  VAOGC 8-88 (Sept. 29, 1988) (reissued as VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 11-1999 (Sept. 2, 1999).  The presumption of soundness applies to a congenital disease but not to a congenital defect.  Quirin v. Shinseki, 22 Vet. App. 390 (2009).  Accordingly, another examination to determine the nature and etiology of the Veteran's kidney disease is required.  

In addition, as the Veteran is in receipt of ongoing treatment for his kidney disease.  Such records of treatment would be pertinent and perhaps critical evidence regarding the claim on appeal; VA treatment records are constructively in evidence and must be secured.

Accordingly, the case is REMANDED for the following action:

1.  Give the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his kidney disease claim.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained.

2.  Upon completion of the above, schedule the Veteran for an appropriate examination (nephrologist if possible) to determine the nature and etiology of his claimed kidney disease.  All pertinent medical records should be made available to the VA examiner for review.  Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be accomplished. 

Based on review of the record and interview/examination of the Veteran, the examiner should:

a)  List each kidney disability diagnosed, including any malrotation of the right kidney, and indicate whether any kidney disabilities are congenital. 

b)  If the Veteran has a congenital kidney disability, state whether it is a congenital "defect" (an imperfection, failure or absence which is generally not considered capable of improving or deteriorating) or "disease" (a condition considered capable of improving or deteriorating).

i)  If the Veteran's kidney disability is a congenital defect, was it subject to superimposed disease or injury during the Veteran's military service?  In answering this question, address the treatment associated with the Veteran's inservice motorcycle accident. 

ii)  If the Veteran's kidney disability is a congenital disease or disorder, indicate whether it was aggravated (permanently worsened during service beyond normal progression) during the Veteran's period of service, including in connection with his inservice motorcycle accident.  

c)  If the Veteran has a kidney disorder that is not congenital, is it at least as likely as not that the Veteran's current kidney disability(ies) had their onset in service? 

d)  If the answer to (c) is no, is it at least as likely as not that any currently diagnosed kidney disability(ies) is/are caused or aggravated by the service-connected right hip disability, to include treatment with prescribed medication (Motrin)? 

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of kidney disability present (i.e., a baseline) before the onset of the aggravation. 

A complete rationale for the opinion must be provided.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3.  After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If the benefit sought on appeal is not granted, he and his representative should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs