Citation Nr: 21003718 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-19 297 DATE: January 22, 2021 ORDER Reopening of a previously denied claim of service connection for a kidney disability is granted. Entitlement to service connection for chronic kidney disease is granted. FINDINGS OF FACT 1. An unappealed September 2001 rating decision denied entitlement to service connection for a kidney disability based on the fact that no nexus to service was shown. 2. Evidence submitted since September 2001 was not previously considered by agency decision makers and addresses an unestablished fact with regard to a kidney disability. 3. The Veteran’s chronic kidney disease is etiologically related to service. CONCLUSIONS OF LAW 1. The September 2001 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence submitted since the September 2001 rating decision denying entitlement to service connection for a kidney disability is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 3. The criteria for service connection for chronic kidney disease are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from March 1977 to February 1987. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a September 2017 hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing has been associated with the claims file. In October 2020, the Veteran was afforded the opportunity for a new hearing before the Board but did not respond within 30 days of the date of the letter, and so is presumed to not desire an additional hearing. In October 2019, the Board remanded this matter for further evidentiary development. The directives have been substantially complied with and the matter again is before the Board. D’Aries v. Peake, 22V et. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the Veteran’s motions for revisions of a September 2001 rating decision that denied service connection for a renal cyst (claimed as kidney disease) and service connection for sickle cell trait, to include hematuria, on the basis of clear and unmistakable error (CUE). The Board directed that the matters of CUE in the September 2001 rating decision be adjudicated by the agency of original jurisdiction (AOJ) in the first instance. At this time, the Veteran is within the time period to pursue an appeal of the adverse July 2020 rating decision which denied the motions for CUE in a September 2001 rating decision. The modernized review system under the Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The adverse July 2020 rating decision constitutes an initial decision to which AMA applies. Under AMA, appellate review at the Board is initiated by a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). 38 C.F.R. §§ 20.201, 20.202. As that form has not been received, this issue is not under the Board’s jurisdiction. Pursuant to 38 C.F.R. § 20.200, the RO must inform the Veteran of his appellate rights to initiate an appeal. To the extent that the Veteran’s representative asserted CUE in a September 2001 rating decision in the context of the Veteran’s application to reopen the claim of service connection for a kidney disability, an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). The Veteran’s CUE motion is not inextricably intertwined with the current application to reopen a claim of service connection, as that matter may be decided irrespective of any eventual determination regarding CUE, on an independent set of facts. While a finding of CUE may render a decision on the current appeal moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Veteran’s motions for revision of a September 2001 rating decision are not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. This appeal is limited to the issues on the title page. New and Material Regardless of the decision of the RO as to whether to reopen a previously denied claim, a finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection for a kidney disability was most recently denied in an unappealed September 2001 rating decision on the grounds that no nexus to service was shown. Since that time, the Veteran has submitted lay statements and testimony, as well as a report completed by a private medical consultant, which indicate a possible nexus to service. Reopening of the claim is appropriate. Adjudication of the Veteran’s claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). As the Veteran’s chronic kidney disease is not included in the list of enumerated diseases associated with exposure to contaminated water at Camp Lejeune, service connection on a presumptive basis for the disability under this theory is not applicable. Nevertheless, the availability of presumptive service connection for a disability based on contaminated water exposure at Camp Lejeune does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he is entitled to service connection for chronic kidney disease due to contaminated water exposure while stationed at Camp Lejeune. The Board notes that in a November 2014 rating decision, the RO acknowledged the Veteran’s service at Camp Lejeune during the recognized period of contamination and conceded his exposure to contaminated water. As a preliminary matter, the Board notes that the evidence of record reflects that the claimed chronic kidney disease did not manifest until well after separation from service. While microscopic hematuria was referenced upon the Veteran’s separation from active service in February 1987, a physical examination did not note a kidney disability. A December 1989 entrance examination for reserve service similarly did not reference a kidney disability. Post-service private and emergency department records dated November 2000 reflect that the Veteran was diagnosed with a renal cyst, confirmed by a CT scan of the abdomen. Subsequent records through May 2001 indicate that the Veteran was also assessed with microhematuria. VA outpatient treatment records dated March 2010 reference a diagnosis of stage 1 chronic kidney disease. The evidence of record reflects that the Veteran was afforded a VA examination in September 2014. The VA examiner refenced the Veteran’s diagnoses of post-service left kidney cyst and post-service mild chronic kidney disease. The VA examiner opined that the in-service microscopic hematuria is consistent with sickle cell trait, which is a congenital or developmental disorder. The VA examiner further opined that the Veteran’s left kidney cyst is not caused by or related to microscopic hematuria. The VA examiner opined that the Veteran’s kidney disease was diagnosed many years after service and most likely than not is related to non-service connected hypertension and diabetes mellitus. Thereafter, a subsequent VA medical opinion was obtained in November 2014. The VA examiner opined that the preponderance of the medical and scientific literature does not establish a causal relationship between contaminated war at Camp Lejeune and the development of a kidney disability, to include renal cysts and chronic kidney disease. The VA examiner indicated that diabetes and high blood pressure are the two most common causes of end stage renal disease and account for most cases. It was further noted that renal cysts as an outcome have also not been causally associated with chemical contaminants in the water at Camp Lejeune and that simple renal cysts are commonly observed in normal kidneys as individuals age. The evidence of record also contains a September 2017 report completed by a nephrologist retained by the Veteran’s representative. The physician referenced the Veteran’s service at Camp Lejeune from March 10, 1977 to February 27, 1987, in-service references to diagnoses of microscopic hematuria, sickle cell trait, and reportedly normal intravenous pyelogram. The physician stated that in 1987, the Veteran was found to have microscopic blood in the urine, which was attributable to sickle cell trait and that he later developed visible blood in the urine in 2000, which is also consistent with sickle cell trait. The physician noted that those with sickle cell trait are at higher risk for decreased kidney function (chronic kidney disease). He stated that this occurs because the abnormal microscopic red blood cells in patients with sickle cell trait decreases the flow of blood to the kidney. The physician indicated that the Veteran eventually developed an elevated serum creatinine level, which indicated that he developed chronic kidney disease. He stated that patients with chronic kidney disease often have multiple contributing causes to their decrease in kidney function, and that each of these causes may be an aggravating factor that interferes with the natural progression of the disease and causes the patient’s kidney function to decrease more quickly. The physician referenced the Veteran’s high blood pressure and diabetes, and stated that both of these conditions could potentially contribute to a decrease in kidney function, but are unlikely to be the primary cause. He reported that patients with kidney disease from diabetes and kidney disease from hypertension very commonly have significant amounts of protein in the urine. The physician opined that the Veteran did not have significant protein in the urine, which makes it less likely that diabetes and high blood pressure were the primary causes of his kidney disease. Rather, the physician indicated that exposure to the chemicals TCE and PCE at Camp Lejeune are known to be associated with the progression of kidney disease to end stage renal disease. The physician opined that the Veteran’s exposure to TCE and PCE are aggravating factors that worsen the natural progression of kidney disease. The physician therefore opined that it is as likely as not that the Veteran’s exposure to TCE and PCE while at Camp Lejeune was an aggravating factor that worsened the natural progression of his kidney disease. In further support of his opinion, the physician cited to medical literature pertaining to drinking water contaminants at Camp Lejeune, toxicological reviews of said contaminants, and nephrology. The Board finds these opinions are entitled to probative weight, as the opinions considered and addressed the Veteran’s contentions, were based on a thorough review of the claims file, and provided sufficient supporting rationales for the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds opinions of record are of high probative value, particularly the thorough report of the private nephrologist submitted by the Veteran. While recognizing the competent medical opinions of record, the Board finds that there is an approximate balance of positive and negative evidence regarding nexus, and the Board will give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). In light of the positive and negative evidence of record, to include specifically the Veteran’s post-service treatment records, September 2017 independent medical report and opinion, and the September and November 2014 VA examination reports, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s chronic disease was aggravated by service. Hence, affording him the benefit of the doubt, service connection for chronic kidney disease is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.