Citation Nr: 21068073 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-09 097 DATE: November 9, 2021 ORDER Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected residuals of lymphoid infiltrate, is granted. FINDING OF FACT The Veteran's chronic kidney disease is etiologically related to his service-connected residuals of lymphoid infiltrate. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for chronic kidney disease, as secondary to service-connected residuals of lymphoid infiltrate, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from July 1982 to July 1985 and from March 1986 to February 1994, to include service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In April 2019 and July 2021, the Board, in pertinent part, remanded the issue on appeal for further development. The issue has returned to the Board. SERVICE CONNECTION Generally, to establish service connection, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected residuals of lymphoid infiltrate, is granted. The Veteran seeks entitlement to service connection for his current chronic kidney disease. He asserts that this disability is associated with his service-connected residuals of lymphoid infiltrate. Based on the evidence of record, the Board finds that service connection for chronic kidney disease, as secondary to the service-connected residuals of lymphoid infiltrate, is warranted. See 38 C.F.R. § 3.310(a). In April 2019 and July 2021, the Board remanded the matter for a new VA examination, as it determined that the VA examinations of record from June 2013 and December 2019 were inadequate. Following the July 2021 Board remand, a new VA examination to determine the nature and etiology of the Veteran's chronic kidney disease was conducted in August 2021. The examiner noted that the Veteran was initially diagnosed with acute kidney failure in 1995, which was now resolved. A current disability diagnosed at any point within the appeal period, even if the disability resolves during the appeal period (becomes asymptomatic) may be subject to service connection. See McClain v. Nicholson, 21 Vet. App. 219 (2007). Thus, the first element of service connection is met for the claimed disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (reflecting that the existence of a current disability is required to establish service connection on a secondary basis). The examiner cited a February 2013 medical treatment record in which it was noted that the Veteran had been receiving continued care of his chronic kidney disease and was, at that time, having elevated creatinine. The examiner also noted results of a June 2006 renal ultrasound with renal cortical echogenic findings concerning chronic renal failure. Based on these findings, the examiner opined that the Veteran's kidney failure was due to his lymphoid infiltrate, non-malignant pelvic soft tissue mass. In September 2021, the August 2021 VA examiner provided an addendum opinion. The examiner again cited the February 2013 medical treatment record; however, this time, the examiner opined that the Veteran's chronic kidney disease was caused by his history of hypertension. As noted in the April 2019 and July 2021 Board remands, the June 2013 VA examination was deemed inadequate, as the examiner's opinion was based on the premise that the Veteran had hypertension at the time he developed a kidney disorder, which was factually inaccurate. Thus, as the September 2021 VA addendum opinion also relies on this inaccurate factual premise, the Board finds this opinion to be inadequate. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). While there is conflicting medical evidence that weighs both for and against the claim of entitlement to service connection for chronic kidney disease, secondary to his service-connected residuals of lymphoid infiltrate, the Board finds that there is competent evidence to support the claim that his current chronic kidney disease is related to his service-connected residuals of lymphoid infiltrate. Significantly, moreover, when there are two conflicting opinions and the evidence is in relative equipoise, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the Board finds that the evidence for and against the claim is in relative equipoise. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for chronic kidney disease, as secondary to his service-connected residuals of lymphoid infiltrate, is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.