Citation Nr: 21004883 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-38 596 DATE: January 28, 2021 ORDER Entitlement to service connection for a kidney disorder, characterized as renal insufficiency, is denied. FINDING OF FACT The Veteran’s kidney disorder, characterized as renal insufficiency, was not caused or aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for a kidney disorder, characterized as renal insufficiency, have not been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to October 1971. He appeals a March 2015 rating decision denying entitlement to service connection for chronic renal insufficiency. In December 2019, the Board, remanded the issue on appeal for further development, to include obtaining a VA medical opinion. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, a VA medical opinion was obtained in November 2020 - which the Board finds adequate for adjudication purposes. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 1. Entitlement to service connection for a kidney disorder, characterized as renal insufficiency. The Veteran’s contends that his chronic renal insufficiency is attributable to active service. Specifically, he argues that the condition was caused by an injury to his back while on active duty. After review of the evidence, the Board finds that service connection is not warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Further, congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Service connection is available for congenital diseases, but not defects, that are aggravated by service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. Here, the Veteran’s was diagnosed with a congenital atrophic left kidney in July 1970, shortly after entrance to service. As such, the presumption of soundness has been rebutted and the Veteran’s atrophic left kidney is considered to have preexisted service. As such, the crux of the appeal is whether the Veteran’s atrophic left kidney is a congenital disease rather than defect and if so, whether it was aggravated during active service. Here, VA sought a medical opinion in November 2020 for the following clarifications: (1) whether the Veteran’s atrophic left kidney is a congenital defect or disease; (2) if found to be a congenital disease, did the Veteran’s atrophic left kidney worsened during service; (3) does the Veteran’s atrophic left kidney contribute to his current chronic renal insufficiency; and (4) is it at least as likely as not that the Veteran’s in-service injury and episode of hematuria in service is etiologically related to his current renal insufficiency. Unfortunately, although the examiner confirmed that the Veteran’s atrophic left kidney is a congenital condition which clearly and unmistakably preexisted service, no further details were provided; the examiner did not specifically address whether the condition was a congenital defect or disease and merely noted that the Veteran has been diagnosed with congenital atrophy of the left kidney as confirmed through the records and the medical opinions contained in the claims file. However, the Board finds that the question of whether the Veteran’s atrophic left kidney is a congenital defect or disease is irrelevant as the examiner answered each additional inquiry with a negative response. First, the evidence does not indicate that the Veteran’s atrophic kidney worsened during service. Specifically, the VA examiner noted that there is no evidence of renal dysfunction while in service or until 2009. Medical record dated July 24, 1998, specifically noted the Veteran's renal condition had not bothered him since service. The atrophic kidney itself has undergone no change per follow-up sonograms over time. The examiner further noted that any impact of service or injury would have manifest at that time or proximate to it, not 35 plus years later. While the Veteran may have had episodes of hematuria post-service, most of which was noted as micro-hematuria (non-visible except to lab techniques), the examiner pointed out that this was attributable to his functioning kidney. Finally, the VA examiner noted that the Veteran’s current chronic renal failure is not attributable to the atrophic kidney alone. The examiner acknowledged that the Veteran would have less renal reserve in the absence of one functional kidney. However, he opined that events after service, more likely than not, affected renal function of the normal right kidney. Notably, the Veteran had normal renal function until 2009. Hence, the chronic renal insufficiency would be due to conditions affecting the normal kidney. The Board affords significant probative weight to the opinion rendered by the November 2020 VA examiner. The opinion was provided by a qualified medical professional after review of the claims file and application of current medical knowledge to the facts. Hence, it is immaterial if the Veteran’s atrophic left kidney is a congenital disease rather than defect as no evidence of in-service worsening has been shown and the Veteran’s current chronic renal insufficiency is not attributable to his atrophic left kidney. Moreover, to the extent that his renal dysfunction is related to service in any other fashion, the evidence does not show such a relationship. Namely, there were no other kidney symptoms other than the atrophic kidney, nor was there any indication of renal dysfunction until years after he left service. Moreover, the Veteran has not asserted, and the evidence does not otherwise show, that his renal dysfunction is in any way related to active duty service. In reaching this conclusion, the Board recognizes the statements from the Veteran regarding the relationship between his chronic renal insufficiency and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the etiology of the Veteran’s chronic renal insufficiency are found to lack competency. In summation, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for chronic renal insufficiency and there is no doubt to be otherwise resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel