Citation Nr: 1617615 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 12-08 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for kidney disease, to include as due to in-service herbicide exposure, and as secondary to service-connected coronary artery disease (CAD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. He served in the Republic of Vietnam from July 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned in a June 2015 Travel Board hearing, the transcript of which is included in the record. The Veteran is seeking entitlement to service connection for kidney disease, which he attributes to in-service exposure to herbicides or his service-connected CAD disability. The Board observes that he was initially diagnosed as having chronic kidney disease in 2009. However, during the course of this appeal, his chronic kidney disease developed into end stage renal disease on dialysis. As such, the Board has broadly characterized the Veteran's claim as service connection for kidney disease, to include as due to inservice herbicide exposure, and as secondary to service-connected CAD disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Moreover, in its December 2009 rating decision, the RO denied entitlement to service connection for anemia and kidney disease. In a January 2012 rating decision, the RO denied service connection for hypertension. In February 2012, the RO issued a statement of the case (SOC) regarding the Veteran's anemia and kidney disease claims. However, when the Veteran submitted his April 2012 substantive appeal, he specifically indicated that he was appealing his "kidney condition" and "hypertension" claims. The RO contacted the Veteran to clarify which issues he intended to appeal. The Veteran did not respond. On May 31, 2012, the RO issued a SOC regarding the Veteran's hypertension claim. That same day, the RO issued a supplemental statement of the case (SSOC) reflecting that the only issue on appeal was the Veteran's claim of entitlement to service connection for kidney disease. To date, the Veteran has not filed a substantive appeal regarding his hypertension claim nor has he indicated that he wished to pursue an appeal of his anemia claim. Therefore, these issues are not before the Board for appellate consideration at this time. The issue on appeal was previously remanded by the Board in August 2015 for further evidentiary development of requesting outstanding post-service treatment records and to obtain a VA examination for the Veteran's kidney disorder. This was accomplished, and the claim was readjudicated in a January 2016 SSOC. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran has currently diagnosed end-stage renal disease requiring dialysis. 2. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides. 3. The Veteran's kidney disorder was not incurred in service and is not otherwise related to service, to include in-service herbicide exposure. 4. The Veteran's kidney disorder is not caused by, the result of, or aggravated by the service-connected CAD disability. 5. The Veteran is not service connected for hypertension. CONCLUSION OF LAW The criteria for service connection for kidney disease, to include as due to inservice herbicide exposure, and as secondary to service-connected coronary artery disease have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely letter dated in October 2009, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Veteran's service treatment records, VA treatment records, the June 2015 Board hearing transcript, and the Veteran's statements are associated with the claims file. The Veteran was also afforded VA examinations in connection with his service connection claim in August 2013 and October 2015. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed in detail below, the Board finds that the August 2013 VA medical opinions are of reduced probative value as the examiners did not adequately address whether the Veteran's kidney disorder was aggravated by the service-connected CAD disability. On the other hand, the Board finds that the October 2015 VA medical opinion adequate. The October 2015 VA nexus opinions considered all the pertinent evidence of record, the Veteran's reported in-service herbicide exposure, and provided a complete rationale for the opinions stated. Significantly, the Veteran and his representative have not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). Kidney disease is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962 and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the veteran was not exposed to any such agent. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(iii). Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, early-onset peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996). However, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for Kidney Disease The Veteran is seeking entitlement to service connection for kidney disease which he attributes to inservice exposure to herbicides. Alternatively, he contends that his current kidney disease was caused or aggravated by his service-connected CAD disability. Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence is against the claim for service connection for a kidney disorder, to include as due to exposure to herbicides and as secondary to the service-connected CAD disability. Initially, the Board finds that the Veteran's DD Form 214 shows that he served in Vietnam during the Vietnam War era from July 1968 to July 1969. Therefore, the Veteran is presumed to have been exposed to herbicides such as Agent Orange while on active duty. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(iii). Next, the Board finds that the Veteran has currently diagnosed end-stage renal disease requiring dialysis. Although the Board finds that the Veteran served in Vietnam during the Vietnam War era, and is presumed to have been exposed to herbicide agents during service, kidney disease is not among the diseases listed under 38 C.F.R. § 3.309(e) (2015), for which presumptive service connection based on herbicide exposure is available. As such, the Board finds that presumptive service connection for kidney disease based on exposure to herbicides in service is not warranted. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's service connection claim on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this regard, the Board finds that the Veteran's kidney disorder is not etiologically related to the in-service herbicide exposure. Service treatment records contain no complaints, diagnoses, or treatment related to a kidney disorder in service. A November 1969 report of medical examination, conducted at service separation, reflects a normal clinical examination of the Veteran's genitourinary system; a kidney disorder was not indicated. The evidence also includes an August 2013 VA kidney examination; however, the examiner did not address whether the Veteran's current kidney disease was caused by his in-service herbicide exposure. Pursuant to the Board's August 2015 remand, a VA medical opinion was obtained in October 2015. The examiner indicated that the claims file had been reviewed. The examiner opined that the Veteran's kidney disease was not caused by or the result of the Veteran's in-service herbicide exposure. In support of this opinion, the examiner indicated that the etiology of the Veteran's chronic kidney disease was hypertension, which damaged his kidneys over many years. Further, the examiner stated that there was no medical literature that supported a finding that exposure to herbicides in the late 1960s was related to developing chronic renal failure requiring dialysis almost 40 years later. Moreover, the examiner stated that renal failure was not a conceded condition related to agent orange/herbicide exposure. Therefore, the examiner opined that it was less likely than not that the Veteran's kidney disease was caused by herbicide exposure of any kind and was more likely than not caused by hypertension over many years. The remaining evidence of record does not support a finding that the Veteran's kidney disease is related to the in-service herbicide exposure. The Veteran has also claimed that his currently diagnosed kidney disorder is caused or aggravated by the service-connected CAD disability. The evidence includes an August 2013 VA examination. The VA examiner reviewed the evidence of record and noted that the Veteran had a long history of both hypertension and chronic kidney disease. After evaluating the Veteran, the VA examiner provided a diagnosis of end-stage renal disease on dialysis and opined that the Veteran's kidney disease was less likely than not proximately due to or the result of the Veteran's service-connected CAD disability. In support of this opinion, the VA examiner cited the medical opinion of a VA physician who provided a nephrology consultation regarding the Veteran's kidney disease in April 2004. The VA examiner concurred with the VA physician's April 2004 opinion that the Veteran's chronic kidney disease, which subsequently progressed to end-stage renal disease requiring dialysis, was caused by his long-standing hypertension, and not his coronary artery disease. The VA examiner did not provide an opinion regarding whether the Veteran's current kidney disease was aggravated by his service-connected coronary artery disease. Later that same month, in August 2013, the RO obtained a supplemental medical opinion from a VA physician. After reviewing the evidence of record and the Veteran's recent August 2013 VA examination report, the examiner observed that the Veteran had end-stage renal disease on dialysis since 2009. The examiner further indicated that the Veteran's end-stage renal disease and chronic kidney disease was due to his non-service connected hypertension. Specifically, the examiner opined that it was "less likely than not" that the Veteran's coronary artery disease had aggravated his chronic kidney disease beyond its normal progression. In support of this opinion, the examiner reasoned that the Veteran's service-connected coronary artery disease had not aggravated his chronic kidney disease because it had already progressed to end stage renal disease and had been stable since he started dialysis in 2009. According to the examiner, there was no evidence that the Veteran's coronary artery disease had aggravated his chronic kidney disease because it could not get any worse than end stage renal disease on dialysis. As discussed in the Board's August 2015 remand, this medical opinion did not properly address whether the Veteran's service-connected CAD disability aggravated his kidney disease. Pursuant to the Board's August 2015 remand, a medical opinion was obtained in October 2015. The examiner indicated that the claims file had been reviewed. The examiner stated that the etiology of the Veteran's kidney disease, as noted by many board certified nephrologists in his treatment notes, was "more likely than not hypertension." The examiner explained that the Veteran had long-standing, poorly-controlled hypertension for years prior to his need for dialysis. Imaging of his kidneys in 2003 and 2006 (ultrasound) showed that his kidneys deteriorated during that time and were more compatible with chronic medical renal changes over those years (from 2003 to 2006). Notably, the Veteran did not have any new cardiac issues during that time. In fact, the examiner indicated that the Veteran had several cardiac exams (myocardial perfusion scan and ETT) in 2003 and 2004 that demonstrated that he had no evidence of cardiac ischemia and he had good exercise tolerance. Further, the Veteran's ECHO in October 2003 showed left ventricular hypertrophy with an EF of 45 percent, consistent with chronic hypertension over many years. The examiner further noted that, having a fairly normal heart (certainly from an ischemia standpoint) on testing/imaging between 2003 and 2006, but worsening kidney function over that same time would not link these two conditions. Further, over that same period of time, the Veteran's hypertension was very difficult to manage and his medications had to be changed or adjusted a number of times. For these reasons, the examiner opined that the evidence showed that the Veteran's hypertension was the source of his kidney failure and not his service-connected CAD disability. Further, the October 2015 VA examiner opined that the Veteran's service-connected CAD disability did not aggravate the Veteran's kidney disease beyond its normal progression. In support of this opinion, the examiner stated that the Veteran had chronic kidney disease, secondary to hypertension, for many years. The Veteran's only cardiac catheterization was in 1992. Pursuant to the Veteran's treatment notes, and his statements to VA providers, he had CAD in one vessel and no intervention was needed on that vessel at the time of catheterization in 1992. Further, a number of cardiac exams had been done on the Veteran through the years starting in 2003. He also had several exercise tolerance tests (ETT) that showed he had normal METs (over 9 each time) and noted his hypertension needed better control while having his ETT. The examiner noted that the Veteran had myocardial perfusion scans that never showed any evidence of ischemia or infarction in the past. The examiner also noted that the Veteran had been seen by cardiology at VA several times and they had never had any indication to take him to the cardiac cath lab. However, during this time, the examiner indicated that the Veteran's kidney function declined even though he had no significant cardiac event, complication, or issue. Therefore, the October 2015 VA examiner reasoned that there was nothing to suggest any cardiac issue (CAD or other) contributed to or aggravated his kidney condition. The Board finds the October 2015 VA medical opinions to be highly probative as to whether the Veteran's kidney disorder is etiologically related to the in-service herbicide exposure on a direct basis and whether his kidney disorder is caused or aggravated by the service-connected CAD disability. The examiner reviewed the evidence of record, discussed the relevant medical evidence, and provided medical opinions support by a well-reasoned rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Although the medical evidence suggests that the Veteran's currently diagnosed kidney disease is caused by the Veteran's long-standing hypertension, the Board notes that the Veteran has not been service connected for his hypertension. As such, secondary service connection is not warranted based on the Veteran's hypertension disorder. The Board has also considered the Veteran's statements asserting a nexus between his kidney disease and the in-service herbicide exposure or to his service-connected CAD disability. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of kidney disease. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Kidney disease is a complex disease process because of its multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Further, the etiology of the Veteran's kidney disease is a medical question involving internal and unseen system processes unobservable by the Veteran. The Board has also reviewed VA treatment records. Although these records demonstrate a diagnosis and treatment for a kidney disorder, they do not provide an opinion as to whether the Veteran's kidney disorder is due to in-service herbicide exposure or a service-connected disability. The Board finds that the October 2015 VA opinion is probative in this case, and shows that the Veteran's kidney disorder is not proximately due to service, to include herbicide exposure, and nor caused or permanently aggravated by service-connected CAD disability. For the reasons discussed above, the Board finds based on the competent, credible, and probative evidence of record, the Veteran's kidney disease was not incurred in service, was not etiologically related to the in-service herbicide exposure, and is not proximately due to or aggravated by service-connected CAD disability. A preponderance of the evidence is against the claim for service connection for kidney disease and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for kidney disease, to include as due to inservice herbicide exposure, and as secondary to service-connected coronary artery disease, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs