Citation Nr: 21063322 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-36 506 DATE: October 13, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a kidney disability is granted. REMANDED Entitlement to service connection for a kidney disability is remanded. FINDINGS OF FACT 1. A May 2015 rating decision denied service connection for a kidney disability; the Veteran did not appeal this decision, and VA did not receive new and material evidence within one year of notice of the decision. 2. Since the last final denial in May 2015, new and material evidence related to the issue of a kidney disability has been received. CONCLUSIONS OF LAW 1. The May 2015 denial of service connection for a kidney disability became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. New and material evidence has been received to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) from a January 2018 rating decision. The Veteran testified at a Board hearing in June 2021. *** Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 -40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The record shows that service connection for a kidney disability was denied in a May 2015 rating decision. This decision reopened the matter, but it denied service connection indicating a lack of complaints or treatment in the service treatment records and of a nexus. The Veteran did not appeal this decision, and VA did not receive new and material evidence within one year of notice of the decision. As such, the May 2015 rating decision became final. Since the last final denial in May 2015, new and material evidence has been received to reopen the claim. Significantly, the Veteran has submitted arguments and evidence regarding exposure to contaminated water at Camp Lejeune, regarding an in-service event/injury. Additionally, VA has obtained VA opinions that address these arguments. This new evidence relates to an unestablished element of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran has a history of chronic kidney disease and end-stage renal disease status post kidney transplant in 2012. 01/23/2018, C&P Exam. He asserts that this condition is related to exposure to contaminated water at Camp Lejeune. 07/13/2017, VA 21-526EZ, Fully Developed Claim & VA 21-4138 Statement in Support of Claim. Veterans, reservists, or members of the National Guard who served no less than 30 days at Camp Lejeune during the period from August 1, 1953 to December 31, 1987 shall be presumed to be exposed to contaminated drinking water. 38 C.F.R. § 3.307(a)(7). Military records show that Veteran served at Camp Lejeune for more than 30 days between 1972 and 1973. 08/31/2012, Military Personnel Records, at 19. Therefore, he is presumed to have been exposed to contaminated drinking water at Camp Lejeune. Service connection can be established for certain diseases enumerated in 38 C.F.R. § 3.309(f) as caused by said contaminated water, even if there is no evidence of the disease in service. 38 C.F.R. § 3.307(a)(7). The presumptive diseases are 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). While the Veteran has a kidney condition, there is no argument or indication that he has kidney cancer. Therefore, his current diagnosis cannot be legally presumed to be service-connected to the Camp Lejeune water contamination. 38 C.F.R. § 3.309(f). Nevertheless, the Court has held that when service connection cannot be granted on a presumptive basis, VA should still determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran has stated that he was diagnosed with chronic renal disease in 2020. 01/27/2019, Correspondence. He believes that his exposure to contaminated water at Camp Lejeune contributed to the development of his kidney condition. In the context of the present appeal, he has also indicated that he had a history of strep throat in service. 11/06/2017, Correspondence. Service treatment records appear to confirm this assertion. 08/31/2012, STR-Medical, at 22-23. An online medical information resource indicates that, if untreated, strep throat can cause complications, such as kidney inflammation. See Mayo Clinic, Strep Throat, https://www.mayoclinic.org/diseases-conditions/strep-throat/symptoms-causes/syc-20350338. In view of this, the Board interprets the Veteran's statement regarding strep throat in service as a suggestion that this history of strep throat may have also contributed to his kidney condition. An April 2017 VA nephrology note indicates that the cause of the Veteran's renal disease was unclear. It was noted that the Veteran served at Camp Lejeune and had been alerted about problems with water quality. The attending renal physician documented that he had informed the Veteran that there are some water-based toxins, including lead, that can damage the kidney. It was noted that the Veteran had, or had had, private treatment at Temple University Hospital, where he had had a kidney biopsy. 07/18/2017, CAPRI, at 7-11. In August 2017, the Veteran underwent a VA examination. He reported a history of diabetes mellitus type 2 and hypertension since the 1980s. It was noted that the Veteran underwent kidney transplant in 2012 at Temple University Hospital. In the Remarks section of the examination report, the examiner, a certified physician assistant, stated that the Veteran "does have a diagnosis of a kidney condition that is, at least as likely as not, incurred in or caused by the Camp Lejeune contaminated water during service. 08/03/2017, C&P Exam, at 7. The examiner, however, did not provide a rationale or explanation for this conclusion. In January 2018, VA obtained an opinion from a VA examiner with subject matter expertise on Camp Lejeune Contaminated Water. The VA examiner, a board-certified internal medicine specialist, opined that the Veteran's history of chronic kidney disease (CKD) and end-stage renal disease (ESRD) status post kidney transplant in 2012 is less likely than not caused by or a result of the Veteran's exposure to CLCW. The examiner's rationale was essentially that the Veteran's kidney condition was almost certainly due to diabetes and hypertension. The examiner further stated that, given the Veteran's lengthy history of diabetes and hypertension, she was extremely confident that the Veteran would have developed CKD and ESRD by 2012 even if he had never been exposed to contaminated water at Camp Lejeune, adding that diabetes and hypertension are the number one and number two causes of CKD in the United States. 01/23/2018, C&P Exam. The Board finds that additional development is necessary, as explained next. In January 2019, the Veteran authorized the release of medical records to VA. In the VA Form 21-4142a, he listed a nephrologist at Temple University. 01/27/2019, VA 21-4142 Authorization for Release of Information. This form was rejected by VA based on a missing signature. 02/12/2019, Correspondence. The Agency of Original Jurisdiction (AOJ), however, did not inform the Veteran about this deficiency nor gave him the opportunity to submit a properly signed form. In view of this, the Board finds that VA did not fully satisfy its to duty to assist the Veteran. On remand, the AOJ should take appropriate action to obtain any available records of kidney treatment obtained at medical facilities affiliated with Temple University. In his June 2021 Board hearing, the Veteran stated that he would try to obtain records from a private family doctor, which would show that he was still being treated for strep throat once he came home from service. VA has so far not received any treatment records from the Veteran. On remand, the AOJ should take appropriate action to assist the Veteran in obtaining these private treatment records. Finally, the Board finds that a new VA opinion is necessary. In this regard, the Board notes that the January 2018 VA opinion does not properly address the question of whether the Veteran's kidney condition is at least as likely as not related to his exposure to contaminated water at Camp Lejeune. Rather, the opinion concludes that the Veteran's kidney condition is more likely than not related to his diabetes and hypertension and uses the rationale portion of the opinion to support this conclusion. In doing so, the opinion ends up skirting the issue of whether the exposure to contaminated water at Camp Lejeune in any way contributed to the development of the Veteran's kidney condition. Furthermore, the opinion did not address the Veteran's suggestion that his in-service history of strep throat may have also contributed to the development of his condition. This matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private treatment that is relevant to his claim of service connection for a kidney disability. This should include records from the nephrologist affiliated with Temple University (see 01/27/2019, VA 21-4142 Authorization for Release of Information) and the family doctor referenced by the Veteran at his June 2021 Board hearing (see 06/04/2021, Hearing Transcript, at 4). Also, advise the Veteran that he may submit any relevant records in his possession to VA. 2. After completing #1, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's kidney disability is at least as likely as not related to service, to include his presumed exposure to contaminated water at Camp Lejeune and his reported history of strep throat in service. The opinion should focus on the extent to which these factors contributed to the development of the Veteran's kidney disability. All conclusions must be supported by a thorough medical rationale. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.