Citation Nr: 1823948	
Decision Date: 04/20/18    Archive Date: 04/26/18

DOCKET NO.  13-25 526	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial compensable rating prior to November 27, 2012, and a rating in excess of 10 percent disabling thereafter for service-connected right shoulder dislocation, status post Bankart repair.  

2.  Entitlement to service connection for chronic renal failure, status post kidney transplant.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

S.Wainaina, Associate Counsel


INTRODUCTION

The Veteran served in the Air National Guard for the State of North Carolina from December 1998 to October 2009, during which he had periods of active duty from May 1999 to November 1999, December 1999 to April 2000, October 2001 to April 2003, May 2004 to March 2005, and November 2005 to March 2006.  He also had prior service in the Army National Guard from December 1994 to April 1997. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  In February 2011, the Veteran filed a notice of disagreement with the RO's decision.  In June 2013, the RO issued a statement of the case, and in August 2013 the Veteran filed a substantive appeal via a VA Form 9. 

In June 2013, the Agency of Original Jurisdiction (AOJ) assigned a 10 percent rating for service-connected right shoulder dislocation, status post Bankart repair, effective November 27, 2012.  However, inasmuch as a higher rating is available for right shoulder dislocation, status post Bankart repair, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating has remained viable on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In August 2014, the Veteran filed an additional claim for service connection for renal failure.  The RO issued a notification letter to the Veteran informing him of the evidence necessary to reopen an already adjudicated claim.  In November 2014, the RO declined to reopen the Veteran's claim for entitlement to service connection for chronic renal failure.  However, the Board notes that this issue was already on appeal. 

In August and October 2014, additional evidence was submitted without a waiver of AOJ consideration.  38 C.F.R. § 20.1304(c) (2015).  However, section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, amended 38 U.S.C. § 7105 by adding new paragraph (e), which provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration.  In the instant case, the Veteran's substantive appeal was received in August 2013 and AOJ consideration of this evidence had not been explicitly requested.  In turn, a waiver of this additional evidence is not necessary and the Board may properly consider all additional evidence submitted.  

The case was remanded in December 2016 for the Veteran to be afforded a Board hearing. 

In July 2017 the Veteran testified at a Board hearing before the undersigned Veteran's Law Judge. A transcript is of record and associated with the Veteran's electronic claims file.  

The issue of entitlement to an initial compensable rating prior to November 27, 2012, and a rating in excess of 10 percent disabling thereafter for service connected right shoulder dislocation, status post Bankart repair, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.  VA will notify the Veteran if further action is required on his part. 


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his chronic kidney disease is presumed to have developed during his active service. 



CONCLUSION OF LAW

The criteria for the establishment of service connection for chronic kidney disease are met. 38 U.S.C.. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.10, 3.159, 3.326(a) (2017). In light of the Board's favorable decision, any deficiencies in VA's duties to notify and assist the Veteran with his claim for service connection decided herein are moot.

II. Service Connection

Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F. 3d 1313, 1316  (Fed. Cir. 2009).

Several alternate paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as cardiovascular-renal disease (kidney disease).  For these conditions, service connection may be granted if the chronic disease manifests itself and is identified as such in service, or within the presumptive period (one year) under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by § 3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a)."). If, however, a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. 

The Veteran essentially contends that he incurred his kidney disease while he was deployed in Afghanistan.   The Veteran stated he had swollen feet and experienced headaches while in active service.  The service treatment records do not contain symptoms of kidney problems.   

In an October 2006 treatment note by Dr. D.H, the Veteran had a blood pressure of 180/90.  Dr. D.H. opined that the Veteran may have renal parenchymal hypertension and most likely has renal disease due to his longstanding hypertension.  

In a January 2007 report, Dr. C.F stated that the Veteran was a dialysis patient and his blood pressure reading were 160/100.  Dr. C.F diagnosed the Veteran with end stage renal disease.  He noted the precise etiology of the kidney failure was unknown.  He opined that the Veteran's disease had rapidly progressed or was undiagnosed despite service in the military with regular examinations.  He further opined that there was no evidence that the Veteran's renal failure was reversible.  

As noted above, cardiovascular-renal disease ( end stage renal disease) is a chronic disorder that can be presumptively service connected if manifested within one year after leaving service. The Board finds the objective medical evidence of record to be highly probative in establishing that the Veteran incurred end stage renal disease within one year after he left active service in March 2006. The Veteran was diagnosed with end stage renal disease to a level at least 10 percent disabling in January 2007 which is less than one year after separation from active service.  Therefore, the condition may be presumptively service connected, unless there is evidence of a post-service intercurrent incurrence of the disorder. Here, no such evidence of any intercurrent causes are of record. 

Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record demonstrates that the Veteran's current kidney disease was manifested during the presumptive period after he left active duty service. Consequently, the condition is presumptively service-connected, and the Veteran's claim is granted.


ORDER

Service connection for chronic kidney disease is granted. 


REMAND

At the July 2017 Board hearing the Veteran testified that his service connected right shoulder condition had worsened.  He testified that he has to put ice on his shoulder regularly to ease his pain.  The Veteran also reported having trouble sleeping at night because of his pain.  The Veteran's last VA examination for his right shoulder disorder was in January 2011.  Since the last VA examination is 7 years old, the Board finds a new examination is necessary to determine the current severity of the Veteran's right shoulder disability.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain pertinent updated VA and non-VA treatment records.  

2.  Once all outstanding records, if any, have been obtained and associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his right shoulder disability.  The Veteran's claims file should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report.  All diagnostic testing should be conducted. 

In addition to addressing the range of motion (ROM) of the right shoulder, the examiner is requested to specifically address the extent, if any, of functional loss of use of the shoulder due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. 

Left shoulder ROM findings should also be provided and both shoulders should be tested on both active and passive motion. 

The examiner must include in the report the rationale for any and all opinions expressed. 

3.  The claim should then be readjudicated by the AOJ. If the benefit sought is not granted in full, the Veteran and his representative should be provided a supplemental statement of the case. They should be afforded an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs