Citation Nr: 21066364 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-20 139 DATE: October 29, 2021 ORDER Entitlement to service connection for a kidney disability other than diabetic nephropathy, specifically left oncocytoma status post nephrectomy, is granted. FINDING OF FACT Diagnosed left oncocytoma status post nephrectomy is related to his service-connected diabetic mellitus and residuals. CONCLUSION OF LAW Left oncocytoma status post nephrectomy is proximately due to or the result of service-connected diabetic mellitus with residuals. 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1970 and from June 1973 to June 1975 and July 1975 to August 1980. He appeals a March 2014 rating decision. The Veteran appeared at a Board hearing in September 2017 at which the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The Board remanded the claim in April 2018 and February 2021. It has been returned to the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for left oncocytoma status post nephrectomy is granted. Service connection is in effect for diabetes mellitus and diabetic nephropathy associated with diabetes mellitus type II (due to presumed herbicide agent exposure), with bilateral cataracts and hypertension from 2007. The Veteran contends kidney disability, including oncocytoma (benign kidney tumor), is due to this service-connected disability. We agree. The record does not demonstrate, nor does the Veteran argue, that this condition was actually present in service or within a year of service separation. Non-VA treatment records from show diabetic nephropathy secondary to long standing diabetes mellitus type II and hypertension from 2007. He underwent nephrectomy in 2013. And now has chronic kidney disease, stage 4, severe. Here, the evidence is in equipoise as to whether there is kidney disability other than diabetic nephropathy that is at least as likely as not proximately due to or aggravated by a service-connected disease or injury. A VA medical professional reviewed the record and examined the Veteran in March 2021. The diagnosis was diabetic nephropathy diagnosed in 2017, with left oncocytoma status post (s/p) nephrectomy diagnosed in 2013, done at Desert Valley Hospital. The examiner opined in pertinent part that the diagnosed left oncocytoma s/p nephrectomy is at least as likely as not caused by the diabetic nephropathy with hypertension and is therefore less likely than not aggravated beyond a natural progression by the diabetic nephropathy with hypertension. Critically, the 2021 VA medical opinion is favorable as to secondary service connection inasmuch as the condition is noted to be as likely as not caused by the diabetic nephropathy with hypertension. The opinion is deemed to be supported by adequate rationale. It is uncontroverted. We assume that the 2021 VA examiner is competent. Furthermore, we find that the AOJ determined that the VA opinion was adequate since it was not returned for support or clarification. The fact that the AOJ did not fully report the VA opinion is not determinative. In light of the evidence, the Board is unable to rationally disassociate the Veteran's left oncocytoma s/p nephrectomy and his service-connected diabetic nephropathy with hypertension. As such, the Board concludes that the current left oncocytoma s/p nephrectomy is proximately due to service-connected diabetic nephropathy with hypertension. 38 C.F.R. § 3.310. Entitlement to service connection is therefore warranted as secondary to diabetic nephropathy with hypertension, and the claim is granted. The Board shall not remand for further clarification. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.