Citation Nr: 18143049 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-24 205 DATE: October 17, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for membranous glomerulonephritis with nephrotic range proteinuria, right kidney, (right kidney disorder) is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a right kidney disorder is remanded. FINDING OF FACT The March 1998 rating decision denying the Veteran’s claim of entitlement to service connection for a right kidney disorder is final; new and material evidence has been received to reopen the claim. CONCLUSION OF LAW New and material evidence has been received and the claim of entitlement to service connection for a right kidney disorder is reopened. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1975 to February 1979, from June 1979 to September 1985, from July 1986 to September 1992, and from April 1994 to July 1994. He had additional service in the Reserves. The Veteran was scheduled for a hearing before the Board for November 2018. In an August 2018 communication, the Veteran stated that he wished to withdraw his hearing request. See letter, August 22, 2018. As such, the Board considers the hearing request to be withdrawn. 1. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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) (2017). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further held that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]” Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. The Veteran has claimed entitlement to service connection for a right kidney disorder. This claim was previously denied in March 1998 rating decision because there was no evidence that any claimed right kidney disorder was in any way related to his active service, or any incidents therein. The evidence received since the March 1998 rating decision, which is the last final denial, service treatment records (STRs), service personnel records (SPRs), and VA and private medical treatment records, which include medical records which speak to the possible etiology of the Veteran’s right kidney disorder. See Sierra Vista Diagnostics, February 14, 1997. Notably, the Board has considered whether 38 C.F.R. § 3.156 (c) pertains to this claim. Subsection (c)(1) of the regulation demands that, “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156 (c)(1) (2017). Here, the new records associated with the claims file consisted of STRs and SPRs. These documents are duplicative of documents which already existed in the Veteran’s claims file at the time of the March 1998 original denial, and then again at the September 2008 denial (denial to reopen the case). The Board notes that the STRs and SPRs were mentioned in, and considered, in the March 1998 (STRs were mentioned) and September 2008 (both STRs and SPRs were mentioned) denials, which means that they were in the claims file at the time of the denials. As such, VA did not have to reconsider the Veteran’s claim, as the official service department records had been associated with the claims file when VA first decided the claim. The presented evidence speaks directly to an element which was not of record, mainly the etiology of the right kidney disorder. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that “the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied”). Accordingly, presumed credible, new and material evidence has been received and the claim for a right kidney is reopened. REASONS FOR REMAND 1. Right Kidney Disorder The Veteran has stated that his right kidney disorder was first diagnosed in June 1997 while he was on active duty with the Army Reserves. See claim, November 2001. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24) (2012); 38 C.F.R. § 3.6 (a), (d) (2017); Biggins v. Derwinski, 1 Vet. App. 474 (1991). “Injury” is defined as harm resulting from some type of external trauma. “Disease” is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002. If a claimant establishes a qualifying disease or injury during ACDUTRA or INACDUTRA, the claimant must still show the existence of a present disability and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). A July 1996 in-service medical examination showed that the Veteran experienced proteinuria (protein in urine). See medical examination, July 30, 1996. February 1997 medical records show that the Veteran was diagnosed with congenitally absent left kidney and compensatory hypertrophy of the right kidney. See Sierra Vista Diagnostics, February 14, 1997. June 1997 medical records show that the Veteran was diagnosed with a right kidney disorder. See University of Arizona Health Sciences Center medical records, June 10, 1997. These are records from the time the Veteran was in the Reserves. The Veteran also underwent a Fit for Duty Evaluation in October 1997 regarding his right kidney disorder. The physician recommended that the Veteran be allowed to continue active duty, as his disease was not causing him any symptoms and he was able to perform all that was required of him as an active duty soldier. See Fit for Duty Evaluation, October 27, 1997. His private treatment records show an ongoing diagnosis of a right kidney disorder. See for example Southeast Arizona Urology Care Center, May 3, 2006. It appears from the record that, but it is not a certainty, that the Veteran was first diagnosed with a right kidney disorder while in service with the Army Reserves. However, the record does not contain SPRs listing all periods of ACDUTRA or INACDUTRA service, and specifically does not contain any records for July 1996, February 1997, and June 1997, when the Veteran was diagnosed with a right kidney disorder. A remand is necessary to attempt to obtain any potentially outstanding SPRs and to ascertain the date of the diagnosis. In light of the above, the Board finds that the Veteran is entitled to a VA examination to determine the etiology of his currently-diagnosed right kidney disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012), 38 C.F.R. § 3.159 (c)(4)(i) (2017). In addition, any outstanding private and VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Send VCAA notice which sets forth the pertinent law and regulations regarding ACDUTRA and INACDUTRA. 2. Obtain any outstanding VA treatment records, and associate them with the claims file. 3. Contact the Veteran and request that he either provides any outstanding relevant private treatment records, or completes a release for any private providers; if any releases are returned, attempt to obtain the identified records. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e) (2017). The Veteran must then be given an opportunity to respond. 4. Ask the Veteran to submit any evidence he has which shows his duty status during July 1996 (possibly diagnosed with proteinuria) and during January 1997 and June 1997 (possibly diagnosed with a right kidney disorder), to include copies of any orders or other service personnel records, or annual point summaries for 1996 and 1997. 5. Contact the appropriate source(s) to verify Veteran’s actual periods of ACDUTRA and/or INACDUTRA for July 1996, February 1997, and June 1997. Obtain and associate with the claims file a point credit summary that breaks down the duty codes and the specific dates to which those duty codes apply. All attempts to obtain the records should be documented in the claims file. 6. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his right kidney disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the detailed list of the Veteran’s dates of active duty, ACDUTRA, and INACDUTRA. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. The examiner should specifically opine as to: (a.) Whether the Veteran’s right kidney disorder is at least as likely as not (50 percent or greater probability) related to his active service. (b.) Whether it is at least as likely as not (i.e., at least 50 percent probable) that the right kidney disorder began during, is etiologically related to, or was permanently worsened by, any period of ACDUTRA or any incident therein. The examiner should, if possible, identify the date of the diagnosis. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel