Citation Nr: 21066275 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 08-24 120 DATE: October 29, 2021 ORDER 1. Entitlement to service connection for kidney stones, to include as due to exposure to herbicide agents, is denied. 2. Entitlement to service connection for renal disease, to include as secondary to kidney stones, is denied. FINDINGS OF FACT 1. The Veteran's nephrolithiasis (kidney stones) was not manifested in service or for many years thereafter, and s not shown to be related to his service, to include as due to his exposure to herbicide agents therein. 2. Chronic kidney disease (CKD) was not manifested during the Veteran's service or within one year following his separation from service; his current CKD is not shown to be etiologically related to his service, and his kidney stone disability is not service-connected. CONCLUSIONS OF LAW 1. Service connection for kidney stones is not warranted. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for renal disease is not warranted; the claim of service connection for renal disease as secondary to kidney stones lacks legal merit. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1965 to October 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2007 and September 2015 Department of Veterans Affairs (VA) rating decisions. In January 2016, August 2018, and May 2021, these matters were remanded for additional development. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, to include calculi of the kidney (kidney stones) and nephritis, may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for kidney stones). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases may be presumed to be service connected as due to exposure to herbicide agents (Agent Orange) if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); nephrolithiasis and CKD are not listed therein. Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1) a disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. 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 layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises, and may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background The Veteran contends that his kidney stones are due to exposure to herbicide agents in Vietnam. He served in Vietnam during the Vietnam era from July 1966 to June 1967, and is presumed to have been exposed to herbicides/Agent Orange in the course of such service. He also contends that his renal disease is related to service, or is secondary to (was caused or aggravated by) his kidney stone disability. The Veteran's service treatment records (STRs) are silent for complaints, findings, treatment, injury, or diagnosis pertaining to the kidneys. On September 1967 service separation examination, his genitourinary system was normal on clinical evaluation. In a contemporaneous report of medical history, he denied history of kidney stone or blood in urine, or sugar or albumin in urine. A June 2006 VA treatment record notes that he had kidney stones (which he also had previously 1 to 1 12 years ago). An August 2006 treatment record notes a diagnosis of ureterolithiasis; a CT scan showed 4 mm calculus left distal ureter with moderate obstructive uropathy. An October 2013 CT scan showed two 1-2mm, nonobstructive stones in the right kidney; there was no hydronephrosis or enhancing mass in either kidney. A March 2015 renal ultrasound showed normal-sized kidneys. A November 2015 VA treatment record notes an assessment of acute renal failure, CKD stage III. A May 2016 VA nephrology treatment record notes that the Veteran's CKD stage III likely resulted from an episode of acute kidney injury and hypertension; his renal function fluctuated (no progression of CKD in the past couple of years). The examiner recommended a renal diet. In a March 2018 VA Form 9, the Veteran attributed his kidney problems to left testicle issues. (He had an AFP level increase, and the doctors felt that it was necessary to remove his left testicle to prevent testicular cancer from spreading to other organs.) He stated that herbicide agents are not eliminated by the body and that they accumulate in the kidneys (according to his interpretation of medical literature). On March 2019 Kidney Conditions Disability Benefits Questionnaire (DBQ), the examiner noted a diagnosis of nephrolithiasis and that the Veteran's STRs, including the service separation examination, are silent for complaints, findings, treatment, or diagnosis pertaining to the kidneys. Since there was an absence of medical treatment for kidney stones (first diagnosed in 2006) for 39 years postservice, he opined that his kidney stones are less likely than not incurred in or caused by the claimed inservice injury, event, or illness. He also opined that renal disease was unrelated to (or secondary to kidney stones) service because he stated there was no diagnosis of renal disease. A March 2019 MRI showed the kidneys were normal in contour and signal intensity. An April 2020 nephrology treatment record notes rigorous control of blood pressure may prevent progression of renal disease. In a July 2020 VA Form 9, the Veteran stated that he did "numerous search and destroy (S&D) missions using creek water with filter pills to purify water" and he drank some herbicides. On August 2021 Kidney Conditions DBQ, the consulting provider noted diagnoses of nephrolithiasis (in 2006) and renal disease (in 2015). She noted that the Veteran's STRs, including the service separation examination, are silent for diagnosis and treatment of kidney stones. She cited to his recurrent episode of kidney stones in 2013 (when a CT scan of the abdomen showed small, nonobstructive right renal stones). Since nephrolithiasis is not an agent orange presumptive condition and there was an absence of complaints or treatment for kidney stones for 39 years postservice, she opined that the kidney stones are less likely than not related to his service. She cited to medical studies (listing the websites) to support her negative nexus opinion (to service). Regarding renal disease, she noted that STRs, including the service separation examination, are silent for diagnosis and treatment of CKD. She cited to medical literature (indicating that main causes of CKD are diabetes and hypertension) and noted that the Veteran had multiple comorbid conditions, including nephrolithiasis (diagnosed in 2006), hypertension (diagnosed in 2007), and benign prostatic hyperplasia (BPH) with outflow obstruction; and that those conditions are risk factors for CKD. She observed that medical literature also indicates that CKD of unknown etiology (CKDu) may occur as a result of pesticide exposure (which was not pertinent to the Veteran because he had a known etiology (recurrent kidney stones, hypertension, and BPH with outflow obstruction). She opined that his CKD was less likely than not related to his service. She cited to medical studies (listing the websites) to support her negative nexus (to service) opinion. Analysis 1. Entitlement to service connection for kidney stones, to include as due to exposure to herbicide agents, is denied. At the outset, the Board finds that the August 2021 advisory medical opinion is substantially compliant with the Board's remand instructions, and that the evidence is now adequate to adjudicate the claims. Nephrolithiasis (for which service connection is sought) is not a disease listed in 38 C.F.R. § 3.309(e); therefore, the presumptive provisions in 38 U.S.C. § 1116 have no applicability in this matter. It is not in dispute that the Veteran has nephrolithiasis (first diagnosed in 2006, 39 years after his separation from service). However, his STRs, including service separation examination, are silent for complaints, findings, treatment, or diagnosis pertaining to kidney stones. While renal calculi are listed in 38 C.F.R. § 3.309(a), the Veteran's kidney stones were not manifested in service or until decades after service. Accordingly, service connection for kidney stones on the basis that they presented as chronic in service, on a chronic disease presumptive basis (under 38 U.S.C. § 1112), or based on continuity), is not warranted. What remains for consideration is whether the Veteran's nephrolithiasis is otherwise shown to be etiologically related to his service. Whether in the absence of a showing of manifestation in service or in the first postservice year and continuity, as here, nephrolithiasis may be related to remote service is a medical question not capable of resolution by mere lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the Veteran's assertions (and interpretation of medical literature relating his kidney problems to herbicide agents) that his kidney stones are due to exposure to herbicide agents in Vietnam. Because he is a layperson, he is not competent to establish by his own opinion that his kidney stones are related to exposures in service (and he has not submitted or cited to any medical opinion or treatise that indicates that may be the case). The Board notes that the March 2019 VA opinion is inadequate for rating purposes (although not totally without probative value) because it fails to account for the Veteran's exposure to herbicide agents. The only fully adequate medical opinion is that by the August 2021 VA consulting provider, who opined that the Veteran's nephrolithiasis is less likely than not related to service. The opinion reflects familiarity with all the evidence of record (noting the Veteran's exposure to herbicide agents), and the provider included a clear explanation of rationale, citing to supporting clinical data (STRs, including the service separation examination, silent for diagnosis and treatment of kidney stones and long intervening postservice period (39 years) before treatment for kidney stones is documented). She cited to medical studies that support her rationale. The provider is competent to offer an opinion in this matter (her competence has not been challenged), and the opinion is probative evidence in this matter. Because the Veteran has not presented competent medical (opinion or treatise) evidence to the contrary, the Board finds it persuasive. Therefore, the preponderance of the evidence is against the Veteran's claim of service connection for kidney stones, to include as due to exposure to herbicide agents. Consequently, the appeal in this matter must be denied. 2. Entitlement to service connection for renal disease, to include as secondary to kidney stones is denied. CKD is not among the diseases listed in 38 C.F.R. § 3.309(e); therefore, the presumptive provisions of 38 U.S.C. § 1116 do not have applicability in this matter. The Board also notes that the secondary service connection theory of entitlement specifically asserted in this matter, that the CKD is secondary to kidney stone disease lacks legal merit, as the Veteran's kidney stone disease is not service-connected (the claimed of service connection for such having been denied by rating decision and on appeal, herein above). See 38 C.F.R. § 3.310; see also Sabonis v. Brown, 6 Vet. App. 430 (1994). It is not in dispute that the Veteran has CKD (diagnosed in 2015, 48 years after service separation). However, his STRs, including service separation examination report, are silent for complaints, findings, treatment, or diagnosis pertaining to renal disease. Accordingly, service connection for CKD on the basis that it manifested as chronic in service, on a chronic disease presumptive basis (under 38 U.S.C. § 1112), or based on continuity under 38 C.F.R. § 3.303(b)), is not warranted. What remains for consideration is whether the Veteran's CKD is otherwise shown to be etiologically related to his service. Whether in the absence of a showing of manifestation in service or for decades thereafter, as here, CKD may be etiologically related to remote service is a medical question not capable of resolution by mere lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the Veteran's assertions (and his interpretation of medical literature he reviewed) that his CKD is due to exposure to herbicide agents in Vietnam. Because he is a layperson, he is not competent to establish by his own opinion that his CKD is related to service. The March 2019 VA opinion in this matter is inadequate for rating purposes because it is based on an inaccurate factual premise (that there is no diagnosis of renal disease, when in fact, there is documentation of such disease in the claims file). Therefore, the opinion is not probative evidence in this matter.] The only competent and fully adequate medical opinion evidence in this matter is in the August 2021 advisory medical opinion. The consulting provider opined that the Veteran's CKD is less likely than not related to her service. The opinion reflects familiarity with all the evidence of record, and the provider included a clear explanation of rationale, citing to supporting clinical data (including that STRs, are silent for diagnosis and treatment of CKD and the long postservice interval before a diagnosis of CKD is documented). She invoked medical principles (citing to medical texts), in explaining that 1) the main causes of CKD are diabetes and hypertension and 2) CKDu (of unknown etiology) may occur as a result of exposure to pesticides (but that medical concept does not apply in the instant case as the Veteran because had known etiological factors for his CKD (multiple comorbid conditions, including nephrolithiasis, hypertension, and BPH outflow obstruction), none of which is service connected. She identified those comorbid conditions as the alternate likely nonservice-related etiologies for the Veteran's CKD. He has not submitted any competent (medical opinion or treatise) evidence to the contrary, and the Board finds the August 2021 opinion persuasive. Consequently, the preponderance of the evidence is against the claim of service connection for CKD. Therefore, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.