Citation Nr: 21067084 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-19 457A DATE: November 3, 2021 ORDER Service connection for a kidney disability, as secondary to service-connected hypertension, is granted. Service connection for rheumatoid arthritis is denied. FINDINGS OF FACT 1. The Veteran's kidney disability is proximately due to, or aggravated by, his service-connected hypertension. 2. The Veteran's rheumatoid arthritis neither had its onset during service, nor may it be presumed to have been incurred during service; and, it is not otherwise shown to be due to any in-service disease or injury, including exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for a kidney disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for rheumatoid arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from June 2013 and August 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the June 2013 rating decision, the RO denied service connection for kidney condition and hypertension. The Veteran's notice of disagreement was received in July 2013. The RO issued a statement of the case in May 2016, and the Veteran's VA Form 9, substantive appeal was received in May 2016. In the August 2014 rating decision, the RO denied service connection for rheumatoid arthritis. The Veteran's notice of disagreement was received in December 2014. The RO issued a statement of the case in December 2016. The Veteran's VA Form 9, substantive appeal to the Board, was received in February 2017. In May 2019, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In November 2019 and March 2020, the Board remanded the case to the RO for further development and adjudicative action. Before the appeal was returned to the Board, the RO issued a rating decision in April 2021 granting service connection for hypertension. As such constitutes a full grant of the benefits sought on appeal with regard to the issue of service connection for hypertension, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In pertinent part, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, provided that the disease manifests to a compensable degree any time after service, in a Veteran who had active military, naval, or air service in the Republic of Vietnam and its surrounding off-shore waters during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Neither rheumatoid arthritis nor the Veteran's kidney disability is one of the listed diseases for which this presumption applies. Nonetheless, a Veteran may establish service connection for a disability not on the list of diseases that are presumed to be due herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for a kidney disability. The Veteran seeks service connection for a kidney disability. He asserts that his kidney disability was caused by in-service exposure to herbicide agents while stationed in Vietnam. Alternatively, he asserts his kidney disability is secondary to the service-connected hypertension. The Veteran has a current diagnosis of chronic kidney disease. See April 2021 VA hypertension examination At the outset, the Veteran's kidney disability is not one of the listed diseases for which the presumption of service connection due to in-service herbicide exposure applies. Thus, although exposure to in-service herbicides has been conceded based on the Veteran's Vietnam service, service-connection on this basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(e). However, the medical evidence of record supports the Veteran's claim for service connection for kidney disease as secondary to his service-connected hypertension. A VA physician provided a favorable opinion in April 2021 wherein she concluded: After reviewing [the claims file], Hypertension is noted being diagnosed on 2/19/1998 and [diagnosis] of [chronic kidney disease] CKD on 1/10/2007 therefore the Hypertension preceded the CKD. There is medical literature that supports Hypertension incurring or causing CKD (NIH; https://pubmed.ncbi.nlm.nih.gov/27873228/Chronic kidney disease (CKD) is both a common cause of hypertension and CKD is also a complication of uncontrolled hypertension. The above medical opinion is highly probative as the examiner reviewed the Veteran's military and post-military medical records in forming her opinion and addressed the link between hypertension and chronic kidney disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the record includes no medical opinion to the contrary. Accordingly, the most probative medical evidence of record suggests that the Veteran has a current diagnosis of chronic kidney disease proximately due to his service-connected hypertension. Resolving all doubt in the Veteran's favor, therefore, the criteria for service connection for chronic kidney disease, as secondary to service-connected hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to service connection for rheumatoid arthritis. The Veteran contends that his rheumatoid arthritis was caused by in-service exposure to herbicide agents while stationed in Vietnam. The Veteran has a current diagnosis of rheumatoid arthritis according to a January 2020 VA examination. Private treatment records show a diagnosis as early as 2009. See December 2016 Northlake Rheumatology records. According to a June 2013 rating decision, exposure to Agent Orange has been conceded. However, rheumatoid arthritis is not among the statutorily enumerated diseases set forth in VA regulations for which presumptive service connection is available for veterans exposed to herbicide agents during active service. As such, the presumption under 38 C.F.R. § 3.309(e) does not apply. Therefore, the question before the Board is whether service connection may be granted on a direct basis. The Veteran's service treatment records are silent as to any complaint or diagnosis of any form of arthritis. As noted above, the evidence of record does not document any diagnosis of arthritis during military service or within one year of discharge therefrom. As such, the presumption of service connection for a chronic disease under 38 C.F.R. § 3.307(a)(3), 3.309(a) is not warranted. Furthermore, the Veteran's June 1969 separation examination showed no arthritis or rheumatism and the Veteran did not complain of joint pain at the time of his discharge; rather, the evidence does not demonstrate any complaints for many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Service connection on the basis of continuity of symptomatology in this case is therefore also not warranted. See 38 C.F.R. § 3.303(b). The Veteran was afforded a VA examination in January 2020 in which the examiner concluded the Veteran's rheumatoid arthritis was less likely than not incurred in or caused by an in-service injury, event or illness and provided the following rationale: This Veteran did not have any evidence of [rheumatoid arthritis] until many years after his active service. His [service treatment records] do not show treatment or other evidence of any type of arthritis. Upon remand to discover whether the Veteran's rheumatoid arthritis was directly related to his conceded herbicide exposure, a VA examiner in February 2021 concluded it was less likely than not that the Veteran's current diagnosis was caused by herbicide exposure. The examiner reviewed the Veteran's claims file, including the service treatment records and his treatment records for rheumatoid arthritis, and recorded the pertinent findings on the examination report. First, the examiner indicated that the Veteran's rheumatoid arthritis was diagnosed many years following service discharge. Next, the examiner noted that RA (rheumatoid arthritis) is an autoimmune response of the body attacking the joints, and commonly known risk factors include a family history, age, gender, previous joint injury and obesity. Finally, the examiner indicated that in taking into consideration all available medical records and literature, including the absence of RA as a recognized complication to Agent Orange exposure, there is insufficient supportive evidence to find that the Veteran's rheumatoid arthritis is as likely as not secondary to Agent Orange exposure. In this case, the only evidence to support the Veteran's claim is his own belief that his rheumatoid arthritis is related to his in-service herbicide exposure. As a lay person, however, he is not competent to provide a nexus opinion on this issue because the first diagnosis of rheumatoid arthritis was years after service discharge, and the Veteran does not possess the requisite medical expertise to opine on medical matters requiring knowledge of internal medical processes such as the etiology and/or causation of his rheumatoid arthritis. The Veteran is certainly competent to report observable symptoms he experiences and their history (such as the presence of varicose veins or the onset of frequent headaches, for example). Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology (such as the onset of ringing in the ears following acoustic trauma, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of the Veteran's rheumatoid arthritis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disease involves a complex internal process and requires the ability to interpret diagnostic medical testing, as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Consequently, the only competent evidence with regard to nexus to military service consists of the opinions of the January 2020 and February 2021 VA examiners. The examiners' opinions are highly probative as they are based on review of the record, examination of the Veteran, and they are supported by a complete rationale. Further, these opinions are unrefuted by any other competent evidence of record. Accordingly, as the evidence of record does not demonstrate that the rheumatoid arthritis is as likely as not the result of military service, to include herbicide exposure, service connection for rheumatoid arthritis is not warranted. See 38 C.F.R. § 3.303. As the preponderance of the evidence is against the Veteran's claim for service connection for rheumatoid arthritis, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.