Citation Nr: 1800071 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 13-25 020A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a kidney disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from June 1948 to February 1954, from May 1954 to May 1957, and from July 1957 to May 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled for a hearing before the Board at the Central Office in Washington, D.C., in September 2016; however, he cancelled his request through a July 2016 written statement. Thus, his hearing request is considered withdrawn. The Board requested an advisory medical opinion from the Veterans Health Administration (VHA) in July 2017. The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903 (2017). In September 2017 and October 2017, the Veteran submitted responsive written statements with attachments for which there is an automatic waiver of initial agency of original jurisdiction (AOJ) review. His representative also submitted an October 2017 written appellate brief that included a waiver of initial AOJ review of all evidence received since the AOJ's most recent readjudication of the claim in the February 2016 supplemental statement of the case (SSOC). The Board notes that the Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran submitted a timely notice of disagreement (NOD) with a March 2017 rating decision. Specifically, VACOLS shows that the RO has acknowledged receipt of an April 2017 NOD as to the issue of service connection for a thyroid disorder and is processing that appeal. The Board also notes that the March 2017 rating decision was issued to effectuate the grant of the claim of service connection for a thyroid disorder in a July 2016 Board decision and does not address any other issues. From the content of the April 2017 submission, it appears that the Veteran may be challenging the initial evaluation assigned for the thyroid disability. In any event, as the RO is processing the appeal from that rating decision, a remand for the issuance of an SOC is not required at this time. See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). This appeal was processed using the Veterans Benefits Management System (VBMS) and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's kidney disorder did not manifest in service and is not otherwise related to service, and the chronic tubulointerstitial nephritis related to his chronic kidney disease with cortical thinning also did not manifest within one year thereafter. CONCLUSION OF LAW A kidney disorder was not incurred in active service, nor is nephritis presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that VA's duty to assist has been met as to obtaining a VA examination or medical opinion. In a July 2012 written statement, the Veteran indicated that he had not been provided a VA examination in connection with this claim. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. This development is necessary if the evidence of record: (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a disability; (2) establishes that the claimant suffered an event, injury, or disease in service, or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, or with another service-connected disability; but (4) does not contain sufficient competent medical evidence to decide the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). The August 2017 VHA opinion is adequate to decide the case because it is predicated on a review of the claims file, including the Veteran's contentions and the medical evidence, sufficiently addresses the central medical issues in this case to allow the Board to make a fully informed determination, and is supported by rationale. The VHA nephrologist was able to provide an opinion based on the record without further physical evaluation or testing needed. See July 2017 VHA opinion request letter. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also 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). 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. As nephritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 nephritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for a disorder claimed to be due to in-service ionizing radiation exposure can be established in three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there is a lifetime presumption for certain diseases, including urinary tract cancer, without any requirement that the disease manifest to a specific degree, for a "radiation-exposed veteran" who participated in a "radiation-risk activity" as defined under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). The Veteran has been shown to have been exposed to radiation in service; however, the record does not reflect, and the Veteran does not contend, that he participated in a qualifying radiation-risk activity as defined by regulation. In addition, although the Veteran has kidney disease, he has not been shown to have kidney cancer (considered to be part of the urinary tract for the purposes of this section). Second, a "radiogenic disease" (a disease that may be induced by ionizing radiation) may be service-connected if certain conditions specified in 38 C.F.R. § 3.311 are met. The list of radiogenic diseases includes kidney cancer manifested five years or more after exposure; however, again, the Veteran has not been shown to have kidney cancer. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). The Veteran has clarified in multiple written submissions that his kidney disorder claim is based on his reported exposure to heavy metals, as discussed in detail below. See, e.g., June 2017 written statement. Based on the foregoing, the presumptive exposure and radiogenic disease provisions are not for application in this case. Third, direct service connection can be established by showing that the disease was incurred in or aggravated by service with evidence of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The potential applicability of this provision is discussed in more detail below. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for a kidney disorder. The Veteran has contended that his current kidney problems are the result of various in-service exposures. See, e.g., October 2011 claim with written statement (initially claiming kidney cysts as seen on January 2007 ultrasound); September 2013 substantive appeal and October 2015 and April 2017 written statements (describing nature of claimed exposures). He has claimed for many years that he was extensively exposed to radiation and toxic substances (including both radioactive chemicals and heavy metals) during his period of active duty service that included work with nuclear weapons. He has reported that, during service, he handled hazardous materials frequently (including carrying weapons with a backpack); the military did not provide him with adequate protective equipment (he only had a dust mask); he was unable to properly wash after his exposure; he wore dosimeters in service, but he was advised to throw them out after use or otherwise dispose of them; and that, overall, the conditions for handling hazardous materials in the military in the 1950s were very unregulated and would not meet the stringent safety requirements in place today. Regarding in-service exposures, the Veteran's service records indicate that his duties included serving as an atomic weapons mechanical assembler and that his military service included some work in the nuclear weapons field. See, e.g., June 2012 Board remand, p. 3 (outlining specific entries in the service personnel records as to the nature of this service). The Veteran has also submitted several letters from the Department of the Army, U.S. Army Center for Health Promotion and Preventive Medicine (DA), including one dated in June 2002. The letter states that it was not possible to determine whether the Veteran was exposed to metals, such as beryllium and cadmium during service, but it was possible that he did have such exposure, as various substances are used in the creation of nuclear weapons. The Director of the Post 9-11 Era Environmental Health Program (DEHP) provided a dose estimate for ionizing radiation for the Veteran of 2.4 rem in connection with another claim based on the same exposure. See August 2012 DEHP memorandum. The Board notes that the Veteran has challenged the accuracy of that dose estimate as part of an appeal of the July 2016 Board decision to the United States Court of Appeals for Veterans Claims (No. 16-3959); however, the currently provided dose estimate does not ultimately affect the outcome of this claim, based on the Veteran's contentions and medical evidence as discussed below. The post-service evidence shows that the Veteran has been treated for kidney problems and that he has been diagnosed with chronic kidney disease, as discussed in detail below. The post-service evidence also shows that the Veteran has been treated for hypertension. See, e.g., December 2006 Dozier Family Health Center private treatment record; June 2007 VA treatment record (showing a diagnosis of hypertension with a history of hypertensive retinopathy); April 2016 Covington Family Care private treatment record. A January 2007 ultrasound of the abdomen revealed a 2 centimeter (cm) cyst on the right kidney and a 7 millimeter (mm) calculus on the left kidney. See Andalusia Regional Hospital private treatment records. A June 2015 renal ultrasound revealed bilateral cysts, more numerous and larger on the right; some evidence of possible cystitis; and cortical thinning of both kidneys, suspected to represent senile change. Following review of these results, the Veteran was referred to Dr. D.S., a nephrologist. See Covington Family Care private treatment records. Laboratory findings from June 2015 and March 2016 show estimated glomerular filtration rate (eGFR) results consistent with stage 3 kidney disease. See Covington Family Care private treatment records. During a July 2015 initial appointment, Dr. D.S. noted the Veteran's medical history, including hypertension and his prior radiation exposure working with nuclear weapons in service. He further noted that the Veteran was referred for evaluation of numerous renal cysts and chronic kidney disease. The assessment was chronic kidney disease, stage III, with a history of hypertension, heavy metal exposure, and aging contributing. Dr. D.S. indicated that the renal ultrasound confirmed chronic kidney disease with cortical thinning and that the cysts appeared benign. The Veteran has continued to receive treatment from Dr. D.S. See Renalus/Dr. D.S. private treatment records. A January 2016 hospital admissions record shows that the Veteran presented with a chief complaint of hypertensive chronic kidney disease. A renal ultrasound performed at that time revealed bilateral renal cysts, with the specific measurements detailed in that report, as well as no evidence of renal artery stenosis. See Andalusia Regional Hospital private treatment records. A March 2016 renal ultrasound revealed bilateral renal cysts and a slight decrease in corticomedullary differentiation, probably more pronounced along the right kidney. See Covington Family Care private treatment records. In an April 2016 written statement, Dr. D.S. indicated that the Veteran had chronic tubulointerstitial nephritis that was related to his ongoing renal failure (i.e. chronic kidney disease). See Mayo Clinic, "Chronic kidney disease" (defining chronic kidney disease as the gradual loss of kidney function, also called chronic kidney failure) https://www.mayoclinic.org/diseases-conditions/chronic-kidney-disease/symptoms-causes/syc-20354521 (reviewed December 2017). The remainder of the record, including the treatment records, does not suggest otherwise. See also August 2017 VHA nephrologist opinion (determined more recent ultrasound findings revealed evidence of chronic kidney disease). The Board notes that the Veteran is competent to report observable symptomatology and events, including his recollection of carrying weapons in a backpack, which would place them in very close proximity to his body. The Board also acknowledges the Veteran's in-service training and duties in the nuclear weapons field. Nevertheless, on review, the Board finds that the Veteran's kidney disorder did not manifest in service. His service treatment records contain multiple examinations and reports of medical history, but do not suggest any kidney problems prior to or during service. Service treatment records dated in February 1958 and March 1958 show that he was initially seen for complaints of an upset stomach and headaches, with the gastrointestinal distress resolving. It was noted that the Veteran had experienced the headaches and a low-grade fever since going to Korea in early February. A March 1958 consultation with laboratory findings revealed no abnormalities. An August 1959 annual examination, May 1960 reenlistment examination, and the May 1962 separation examination also show that the Veteran's genitourinary system was normal. The Veteran reported that his health had been good, except for a hearing loss issue during the August 1959 and May 1960 examinations. The corresponding reports of medical history from the May 1960 and May 1962 examinations further show that his father died of kidney trouble, but the Veteran denied having a personal history of relevant symptoms. Regarding the chronic tubulointerstitial nephritis, to determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not suggest that the Veteran had nephritis during service or that it manifested to a compensable degree within one year of his service for chronic presumptive service connection. Moreover, the Veteran has contended that his kidney cysts were present long before the 2007 ultrasound diagnosis, but he has not contended that he has experienced ongoing kidney symptoms since service. See September 2017 written statement. Indeed, the 2007 ultrasound was ordered due to his report that his stomach was hurting to rule out a gallbladder problem, and the assessment related to that complaint following the ultrasound was unrelated to the kidneys. See January 2007 Dozier Family Health Center private treatment records. In addition, he filed service connection claims for multiple disorders prior to first filing this kidney cyst claim in October 2011. See, e.g., March 2017 rating codesheet. To the extent that he has suggested that any kidney cysts first manifested in service, the Board finds that such a contention is not consistent with the contemporaneous record as discussed above and is outweighed by the affirmative evidence showing otherwise. See also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a claimant). In addition to the lack of evidence showing that the kidney disorder manifested in service or within close proximity thereto, the weight of the evidence of record does not relate the disorder to the Veteran's military service. The June 2002 DA letter indicates that chronic cadmium exposure largely affects the kidney. As such, the letter suggests a possible relationship between the Veteran's kidney problems and in-service cadmium exposure, but it does not provide an etiology opinion specific to the facts in this case. In an April 2016 written statement, Dr. D.S. noted that the Veteran had been exposed to cadmium and beryllium, which are known heavy metals, during the course of his training and service. Dr. D.S. indicated that cadmium was known to have a specific link to chronic tubulointerstitial nephritis and that, quite simply, the exposure was very likely a cause of the Veteran's ongoing renal failure and contributing to his medical problems. The Board acknowledges this opinion from the Veteran's treatment provider; however, the opinion is inadequate because it does not address the complete history of the development of the Veteran's kidney problems, including the fact that the other treatment records from this provider indicate that the etiology of the chronic kidney disease is multifactorial. As such, the Board finds that this opinion is of limited probative value on this issue. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993) (an opinion based on an inaccurate (or unsubstantiated) factual premise has limited, if any, probative value) and Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In a December 2016 written statement, a physician's assistant (P.A.), L.N., from Covington Family Care noted that the Veteran continued to receive treatment for stage III chronic kidney disease and hypertension, among other things. L.N. indicated that the Veteran had several illnesses of which some were service-related; however, he did not provide a specific opinion on the question of etiology. The Board requested an additional medical opinion to have an examiner consider the complete history of the development of the kidney disorder. The August 2017 nephrologist determined that the likelihood that the Veteran's decline in kidney function resulting in chronic kidney disease stage 3 as a result of exposure to heavy metals was extremely low to none. In so finding, the VHA nephrologist explained that the Veteran had a history of hypertension treated with medication, and he also had evidence of hypertensive retinopathy (damage of the retina due to poorly controlled hypertension) in 2007. He further explained that, in his opinion, the Veteran had other reasons for his decline in kidney function resulting in chronic kidney disease stage 3, which were hypertension and age-related chronic kidney disease. In so finding, he indicated that the Veteran only had cysts on the kidney in 2007 and no other evidence of chronic kidney disease on the ultrasound and that the 2015 ultrasound showed more cysts and cortical thinning associated with chronic kidney disease commonly seen with aging and with hypertension. He indicated that the 2016 ultrasound also showed evidence of chronic kidney disease. The VHA nephrologist concluded that it was extremely unlikely that cadmium exposure more than a half a century earlier would manifest at this late stage and that other stigmata associated with kidney disease due to cadmium exposure, such as proteinuria, were also absent. This opinion associates the Veteran's kidney disorder with age and nonservice-connected hypertension. The Board finds that the August 2017 VHA opinion is highly probative, as it is based on a review of the claims file and is supported by rationale. See Nieves-Rodriguez, supra. Significantly, the opinion is consistent with the treatment records. For example, the June 2015 ultrasound shows that cortical thinning of both kidneys was suspected to represent senile change. The VHA nephrologist also based his decision that the kidney disorder was not due to in-service cadmium exposure, in part, on the absence of proteinuria. In the July 2015 initial appointment, Dr. D.S noted that an assessment of proteinuria was needed. In an April 2017 private treatment record, Dr. D.S. provided the same diagnosis and causal factors, but also indicated that there was low proteinuria. These records suggest a consistency with the VHA nephrologist's determination as to the etiology of the kidney disorder. Regarding ionizing radiation exposure, the Board finds that the medical evidence reflects that the kidney disorder is related to causal factors other than such exposure. Both medical opinions addressing the question of etiology, although contradictory to each other as to etiology, reflect consideration of the Veteran's in-service heavy metal exposure. The Veteran has not been shown to have kidney cancer, a radiogenic disease. In addition, the Veteran has routinely requested that VA consider his claim based on contamination from heavy metals, rather than ionizing radiation. More recently, he has indicated that the link from in-service ionizing radiation exposure to his current kidney problems is from hypertension caused by in-service ionizing radiation exposure. See, e.g., July 2012, October 2015, June 2017, September 2017, and October 2017 written statements. However, the Veteran is not service-connected for hypertension, and the issue of entitlement to service connection for hypertension, to include as due to ionizing radiation, is not before the Board. Based on the foregoing, the Board finds that the evidence does not suggest a direct link between any in-service ionizing radiation exposure and the current kidney disorder, such that an additional medical opinion or further information regarding the dose estimate would be necessary prior to adjudication of this claim. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board acknowledges the Veteran's contention that his hypertension could be related to his in-service ionizing radiation exposure, as well as his representative's assertion that the VHA opinion "has opened the door in this claim for entitlement to service connection for hypertension" as a link between in-service events and the current kidney disorder. See September 2017 and October 2017 written statements; October 2017 written appellate brief. Nevertheless, as noted above, the Veteran is not service-connected for hypertension at this time, and he has not submitted a claim for service connection for hypertension on a standardized form. The RO recently notified him of the new VA requirement to file claims on a standardized form, and he has acknowledged receipt of the information needed to file such a claim. See May 2017 and June 2017 RO notification letters and June 2017 response. Indeed, the Veteran submitted the April 2017 NOD discussed above on a standardized NOD form. The Veteran has also been represented throughout the course of this claim, and the representative was copied on both of the notification letters. The Board has considered the Veteran's statements, including his contentions as to the timeframe of the development of the kidney cysts and causal factors for the development of kidney disorder, as well as his belief that the private and VHA nephrologists' medical opinions are of equal probative value. See, e.g., September 2017 written statement. The Board has also considered the lay statements submitted by his friends and a social worker reflecting their observations as to his current health and their belief that his in-service exposures caused his current problems. Even assuming the Veteran's competence to report the nature of his in-service exposures based on his in-service training and duties, the ultimate etiology questions in this case are related to an internal medical process which extends beyond an immediately cause-and-effect relationship that is of the type that is beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). To the extent that these lay statements are reflective of any contemporaneous medical opinion on these questions, the Board notes that they are afforded no more weight than that of the opinions themselves, as discussed above. Moreover, even assuming that these individuals are competent to opine on these medical matters, the Board finds that the VHA nephrologist's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by rationale based on such knowledge. The VHA nephrologist also reviewed pertinent evidence and considered the Veteran's own reported history and lay statements. The Board has also reviewed the internet medical articles submitted by the Veteran in November 2016 describing health effects of exposure to cadmium, including kidney dysfunction. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). Nevertheless, the question of whether cadmium exposure can cause kidney problems is not at issue here. Both medical opinions addressing the etiology of the kidney disorder considered the known relationship between such exposure and decline in kidney function. Rather, the central medical issues relate to the history of the development of the Veteran's kidney disorder, based on the specific facts in this case. In addition, the most probative evidence shows that the Veteran's kidney disorder is not related to heavy metal exposure, as discussed above. As such, the Board finds that the submitted medical literature has limited probative value. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for a kidney disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs