Citation Nr: 21003994 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-05 998A DATE: January 25, 2021 ORDER Entitlement to service connection for chronic kidney diseaseis granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is granted. REMANDED Entitlement to an initial compensable rating for hypertension (HTN) is remanded. FINDINGS OF FACT 1. The Veteran’s chronic kidney disease had its onset in service. 2. For the entire period on appeal, the combination of the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic kidney disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. For the entire period on appeal, the criteria for a total disability based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1985 to February 1986, from December 1990 to June 1991, and from October 1995 to August 2014 with service in the Persian Gulf from February to May 1991 and fom March to October 2008. In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a virtual hearing. At the hearing, the Veteran testified that due to his service-connected disabilities he was unable to work. Thus, the Board has jurisdiction of the issue of entitlement to a total disability based on individual unemployability (TDIU), as it is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to service connection for chronic kidney condition, also claimed as chronic renal failure The Veteran testified, under oath, that he was diagnosed with chronic kidney disease while on active duty and that he has remained under treatment for this disease at military treatment facilities, identified as Fort Belvoir and Walter Reed National Military Medical Center (Bethesda) ever since. As an initial matter, the Board notes that a layperson is competent to report on the onset and continuity of his or her current symptomatology and treatment. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds the Veteran’s testimony is competent, credible, and therefore, probative evidence of his chronic kidney disease. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ - the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting 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). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) includes nephritis, chronic kidney disease. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Nephritis is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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 a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Turning to the medical evidence of record, the service treatment records (STR) show diagnosis of, and treatment for, chronic kidney disease, stage 1, diagnosed as Glomerulonephritis, chronic; thin basement membrane disease, in April 2011. Moreover, the Veteran’s separation physical examination in February 2014 contains a physician’s notation of chronic kidney disease stage 1; chronic microscopic hematuria. The Board finds that he has an in-service showing of a chronic disease. As stated above, chronic kidney disease is a condition which may be presumptively service connected as chronic condition under 38 C.F.R. § 3.309. Here, the Board notes that the probative evidence shows that the Veteran’s chronic condition was diagnosed in-service and that he has received ongoing treatment for it since then. Thus, the criteria for presumptive service connection are met, as the probative evidence shows a chronic disease shown in service with subsequent manifestations of that disease, as seen in the requirement for ongoing treatment. Thus, service connection for chronic kidney disease is warranted. 38 C.F.R. § 3.303(b); 3.307, 3.309; Walker, 708 F.3d at 1338-1339. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran testified, under oath, that he has been unable to work due to his service-connected disabilities. In particular, the Veteran testified that he was unable to keep working at an auto parts store as a delivery driver because the parts were too heavy for him to lift due to his disabilities; he stated that due to his service-connected back disability he had difficulty “lifting and trying to carry things, stepping off of curbs.” He also testified that his back, neck and bilateral upper extremity disabilities prevented him from doing any kind of sedentary work. The Board finds that the Veteran’s testimony is credible, and thus is probative evidence. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of one 60 percent disability or one 40 percent disability, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. The combined rating for the Veteran’s service-connected disabilities is 90 percent: 50 percent disabled for obstructive sleep apnea; 20 percent for cervical spine herniated discs (neck); 20 percent left upper extremity radiculopathy; 20 percent for right upper extremity radiculopathy; 10 percent for right hand index and long finger strain; 10 percent for left hand index and long finger strain; 10 percent for thoracolumbar strain (back); 10 percent for tinnitus; and noncompensable ratings for right hand thumb strain; left hand thumb strain; right hand little finger strain; left hand ring finger strain; right hand ring finger strain; left hand little finger strain; bilateral hearing loss; allergic rhinitis; hypertension; and neck scar, status post thyroidectomy. As such, the Veteran meets the schedular requirements for TDIU. 38 C.F.R. § 4.16. The Board finds that the probative evidence of record shows that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The file shows that his previous occupation was as a delivery truck driver, which his service-connected disabilities prevented him from following. The Board also notes that the Veteran has been service-connected for his neck, back, both arms and both hands disabilities. In addition, the Veteran has had some community college coursework, but no degree was obtained; his previous work history has been as a soldier and his civilian employment required physical work that he was unable to perform due his service-connected disabilities. Based on the foregoing, the Board finds that the combination of this Veteran’s service-connected disabilities prevents him from securing or following a substantially gainful occupation. Thus, the Board finds that a schedular TDIU is warranted for the entire period of the appeal. 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for hypertension (HTN) is remanded. The Veteran testified that he believed his service-connected hypertension warrants a 10 percent disability rating, a grant of which would satisfy his appeal. The Veteran challenges the adequacy of the VA examination and based on the record the Board finds another VA examination is necessary to adjudicate this claim. As such, the claim must be remanded. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner should provide a full description of the disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.