Citation Nr: 1639286 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 14-28 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for kidney disabilities, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1964 to February 1979 and from May 1982 to June 1987. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned during a travel Board in October 2015. A transcript of the hearing has been associated with the record. In conjunction with the hearing, additional evidence was submitted, along with a waiver of initial RO consideration of the evidence. See 8 C.F.R. §§ 20.800, 20.1304 (2015). The record was also held open for 30 days; however, no additional evidence was received or associated with the record during that time. In January and March 2016 the Board requested a medical opinion from a health care professional in the Veterans Health Administration (VHA) regarding the etiology of the Veteran's kidney disabilities. Opinions were received in March and June 2016. This matter is now returned to the Board for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. These records were reviewed in conjunction with the decision below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a) (2) (West 2014). FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. The Veteran's kidney disabilities (diagnosed as chronic kidney disease; papillary renal cell carcinoma, eosinophilic variant type II; end stage renal disease including large numbers of obsolescent glomeruli and chronic interstitial nephritis; and medullary interstitial amyloidosis) are related to service, including his presumed exposure to Agent Orange therein. CONCLUSION OF LAW The Veteran's kidney disabilities were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication. Pelegrini v. Principi, 18 Vet. App. 112 (2004). To the extent that the action taken herein below is favorable to the Veteran, further discussion of VCAA is not required at this time. II. Service Connection The Veteran contends that his kidney disabilities are related to the dioxin in Agent Orange, a known human carcinogen. The Board notes that as the Veteran served in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (a) (1) (B) (ii); 38 C.F.R. § 3.307 (a) (6) (iii). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disease first 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101 (3), 1112(a) (1); 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). The Veteran claimed that his kidney disabilities are due to exposure to Agent Orange. Kidney cancers are not diseases for which veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116 (a) (2); 38 C.F.R. § 3.309 (e). Relevant to this case, AL amyloidosis is among those diseases; however, as outlined below, the Veteran has not been diagnosed with AL amyloidosis. The lack of availability of service connection on a presumptive basis for a particular disease does not preclude consideration of entitlement to service connection for that same disease on a direct basis. 38 U.S.C.A. § 1113 (b); 38 C.F.R. § 3.304 (d). Moreover, in direct appeals, all filings must be read in a liberal manner, and Board must review all issues reasonably raised from a liberal reading of all documents in the record. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); EF v. Derwinski, 1 Vet. App. 324, 326 (1991). The Board will therefore consider entitlement to service connection for kidney disabilities on the other bases noted above. The Veteran asserts that he is entitled to service connection for a kidney disability, to include as due to herbicide exposure; alternatively, as due to the treatment required for a tropical disease contracted during active duty. The Veteran contends that in 1965, when he was stationed in Okinawa, Japan, he contracted a tropical disease. The Veteran stated in June 2011 that the treatment for this disease included a large dose of Tetracycline. The Veteran furthered that private treatment providers have indicated that either high fevers from the tropical disease or the Tetracycline treatment could have caused his kidneys to fail. The Veteran served on active duty from March 1964 to February 1979 and from May 1982 to June 1987. Per his service in the Republic of Vietnam, listed on his DD214, the Veteran's exposure to herbicides is conceded. Service treatment records show an entrance examination in March 1964 in which the Veteran reported the history of a kidney infection in March 1961 and a relapse in 1962. The discharge examination in November 1978 noted the Veteran had a kidney infection in 1977, and he spent seven weeks in the hospital in 1965 and 1975. Service treatment records are also replete for sick complaints, to include diarrhea, fever, shakes/chills, sleepiness, dizziness, and nausea in April 1966, November 1967, March 1968, December 1973, October 1976, and October 1986. A report of medical examination in May 1983 also listed kidney infections in 1960, 1967, 1974 and 1978. In April 1967 it was noted that the Veteran had frequent urinary tract infections (UTI) and blood in his urine. A January 1974 clinical record showed that the Veteran had recurrent episodes of illness since being in Okinawa in 1965. A September 1975 note showed that the Veteran was seen for an undiagnosed illness; it was noted that he had a history of scrub typhus and tsutsugamushi fever, and the treatment noted was Tetracycline. The Veteran was also admitted to the hospital in October 1986 with a viral syndrome. Private treatment records in January 2011 showed diagnoses of chronic kidney disease and history of tropical infectious disease. Private treatment records in October 2014 showed that the Veteran had a right kidney nephrectomy and diagnoses of papillary renal cell carcinoma, eosinophilic variant type II; end stage renal disease including large numbers of obsolescent glomeruli and chronic interstitial nephritis; and medullary interstitial amyloidosis. The evidence is clear that kidney cancers did not have their onset in service, a malignant tumor did not manifest within the one year presumptive period, and such cancers did not manifest for many years thereafter. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). It is clear then that neither was a malignant tumor "noted" during service. 38 C.F.R. § 3.303 (b). The evidence is also clear that the Veteran has diagnosed kidney disabilities and has received treatment as a result of such diagnoses; thus the Board will turn its focus on the crux of the issue, which is the establishment of a link between the Veteran's kidney disabilities and service, including his exposure to Agent Orange therein. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Veteran was afforded a VA examination in July 2011 in which the examiner diagnosed chronic kidney disease. The examiner opined that it was less likely as not that the chronic kidney failure was aggravated or caused by the recurrent kidney infections during military service. The examiner noted that the Veteran had chronic complains of UTI in service, but his discharge examination and other examinations were normal for renal failure or diagnosis of UTI. The examiner opined that the evidence did not show a nexus between chronic kidney disease and Agent Orange. The examiner also stated that there was no evidence of chronic kidney disease between 1987 to 2009. The Board accords this July 2011 medical opinion little probative value. Although the examiner conducted an examination of the Veteran, reviewed his past and present medical history, and reviewed the Veteran's reports of in-service and post service symptomatology, the Board finds that the examiner could have elaborated further on the negative nexus finding with supporting rationale. Moreover, the examiner did not address the Veteran's other kidney disabilities to include papillary renal cell carcinoma, eosinophilic variant type II; end stage renal disease including large numbers of obsolescent glomeruli and chronic interstitial nephritis; and medullary interstitial amyloidosis. Finally, the examiner appeared to base at least part of this opinion on the absence of treatment; therefore, the rationale is inadequate because it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Dr. C.E.T. submitted a statement in July 2012 that he did not think the July 2011 examination was valid. He opined that the time course of the Veteran's illness strongly suggested that his kidney failure dated from his illness suffered while in Vietnam, and it was extremely likely that the kidney failure was directly related to his illness or exposure which occurred while he was on active duty. Dr. C.E.T. also stated in July 2014 that it was his understanding that the Veteran experienced an increase in his creatinine from 0.7 to 1.4 prior to his discharge from service; this represented a 50 percent loss of kidney function that occurred while on active duty. Dr. C.E.T. stated that as a result of this kidney injury, the Veteran later progressed to end stage renal disease requiring dialysis. The Board also accords these July 2012 and 2014 medical opinions little probative value. Dr. C.E.T.'s use of the terminology "strongly suggested" and "extremely likely" does not satisfy the legal standard used by the Board, "at least as likely as not". Moreover, the Board finds that Dr. C.E.T. could have elaborated further on the nexus finding with supporting rationale. The Board notes that the Veteran has also submitted Internet articles regarding Tetracycline-induced acute interstitial nephritis as a cause of acute renal failure. The Board sought a VHA opinion in January 2016 in which a reply was received from Dr. C.L.D. in March 2016. In pertinent part, Dr. C.L.D. stated that it was impossible to say that all of the Veteran's abnormalities began while he was in service; there was an association of Agent Orange with various malignancies. In March 2016 the Board found that the opinion provided by Dr. C.L.D. was not clear, at best, and was not responsive to the questions posed by the Board. Thus, the Board is not able to assign any probative value to this opinion. The Board sought another opinion in March 2016, and a response was received by Dr. A.M.P.-R. in June 2016 in which he stated, in pertinent part, that any antibiotics including Tetracycline and inflammatory conditions may induce an interstitial nephritis which may evolve to chronic interstitial nephritis as a complication. In addition, he stated that there was a high frequency of chronic interstitial nephritis in South Asia where the Veteran was serving during his active duty. Dr. A.M.P.-R. stated that regardless of the level of uncertainty of the cause of the Veteran's kidney disease due to late pathological findings, missing records, and poor early screening of kidney function, the repetitive inflammatory insults and exposure to Tetracycline were well recognized conditions associated with renal failure presenting as chronic interstitial nephritis and amyloidosis A. Therefore, it was his opinion that the Veteran did not have AL amyloidosis, and it was at least as likely as not that the claimed kidney and renal disabilities had their onset in and/or were etiologically related to the Veteran's active duty service. Moreover, in accordance to new medical literature, the Veteran was at least as likely as not to have developed kidney and renal disabilities related to exposure to herbicides. The doctor stated that the Agent Orange contaminant dioxin was associated with chronic kidney disease and was an independent risk factor for chronic kidney disease in an endemic area of exposure; the Veteran had two tours of duty in Vietnam giving the potential for multiple exposures to the herbicides. The Board assigns great probative value to this opinion as it was based upon review of the Veteran's record, pertinent medical literature, and Dr. A.M.P.-R.'s expertise in the field of nephrology. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the only probative evidence of record supports the Veteran's claim for service connection for his kidney disabilities. Based on the foregoing, the Board finds that the weight of the evidence supports the Veteran's claim for service connection for kidney disabilities (diagnosed as chronic kidney disease; papillary renal cell carcinoma, eosinophilic variant type II; end stage renal disease including large numbers of obsolescent glomeruli and chronic interstitial nephritis; and medullary interstitial amyloidosis). ORDER Service connection for kidney disabilities, to include as due to Agent Orange herbicide exposure, is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs