Citation Nr: 21069670 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-14 226 DATE: November 19, 2021 ORDER Entitlement to service connection for kidney condition, categorized as end stage renal failure post status kidney transplant, secondary to service-connected hypertension is granted. REMANDED Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran is diagnosed with end stage renal failure secondary to hypertension. CONCLUSION OF LAW The criteria for entitlement to service connection for kidney condition, categorized as end stage renal failure post status kidney transplant, secondary to service-connected hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1990 to April 1992. Entitlement to service connection for kidney condition, categorized as end stage renal failure post status kidney transplant, secondary to service-connected hypertension The Veteran contends that he developed end stage renal failure and underwent a kidney transplant due to hypertension. After a thorough review of the evidence, the Board finds that entitlement to service connection for end stage renal failure post status kidney transplant, secondary to service-connected end hypertension is warranted. Service connection may be established 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(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Secondary service connection under § 3.310 entails "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In a July 2020 rating decision, the RO granted entitlement to service connection for hypertension with an effective date of March 2009. Currently this is the only service-connected disability for the Veteran. The Veteran contends that he developed end stage renal failure and had to undergo a double kidney transplant due to his hypertension, which is now a service-connected disability. The medical records in evidence support that the Veteran underwent a kidney transplant in December 2001. The medical records for the transplant note that the Veteran's diagnosis was end stage renal disease secondary to hypertension. A December 2002 medical record categorizes the Veteran's kidney condition in the same manner. Recent CAPRI records in June 2020 also categorize the Veteran's kidney condition as end stage renal disease secondary to hypertension. A July 2009 private medical opinion from Dr. K, one of the Veteran's nephrologists, stated that the Veteran had end stage renal disease secondary to hypertension that had been poorly controlled prior to development of the renal failure. "His renal failure was presumed to be related to hypertension" at the time of the kidney transplant in 2001. A July 2009 private medical letter from Dr. C, stated that at the time of initial treatment for kidney disorder in 1998, the Veteran already had high blood pressure and the state of the Veteran's kidneys "indicated chronicity." The physician stated that he could not "determine the cause of his renal failure given the nature of the chronicity of the renal findings, the high blood pressure could have been a cause or a consequence of his end stage renal disease at presentation." In a July 2011 private medical opinion from Dr. S., he opined that "it is clear that his ESRD was a result of uncontrolled hypertension as opined by almost all his treating physicians and myself." In the October 2015 private medical record, Dr. K. wrote that the Veteran had end stage renal disease secondary to hypertension, possibly as a condition that had developed coincident in service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). VA obtained a medical opinion in July 2019 pursuant to a prior Board remand as the 2016 medical opinion did not provide the required information from the 2015 Board remand. The July 2019 medical opinion found that the Veteran's kidney condition was not at least as likely as not secondary to the Veteran's hypertension, citing only to the 2009 letter from Dr. C. indicating that hypertension could be a cause or consequence of end stage renal disease. The examiner then also opined on aggravation of a condition that pre-existed active service. The Board finds this opinion as a whole to be inadequate, first because it cites to only one of several available opinions that is neither positive nor negative, but importing only the negative inference; second, because it did not cite to any other medical evidence connecting the renal disease and the hypertension; and third, because the medical evidence of record does not support that the Veteran's kidney disease "clearly and unmistakably" pre-existed active service, and accordingly an opinion on aggravation for such a circumstance is not warranted nor proper. In the July 2019 VA examination for hypertension, the examiner noted that other complications from hypertension included end stage renal disease and kidney transplant, explaining that the Veteran also takes blood pressure medication that strains the kidney. Based on the evidence, as discussed above, the Board concludes that entitlement to service connection for end stage renal disease post status kidney transplant as secondary to service-connected hypertension is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine and finds that the evidence in favor of the appeal outweighs the evidence against the appeal, and accordingly grants the appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). As mentioned above, the Veteran is currently rated at 10 percent for a single disability of hypertension. With the above decision, the Veteran is granted entitlement to service connection for kidney condition. Prior to a determination on TDIU, the RO should assign a disability evaluation for the kidney disease. If the TDIU determination remains denied after consideration of the new disability, the RO can return the claim to the Board for further adjudication. The matter is REMANDED for the following action: 1. After assigning a disability evaluation for kidney disease pursuant to this decision, readjudicate the Veteran's claim for TDIU. Where necessary, and with the assistance of the Veteran, obtain recent medical treatment records to include both private and government facilities, including but not limited to, Cleveland Clinic, Mayo Clinic, and private individual medical providers as indicated by the Veteran to assist in a determination of TDIU. Schedule the Veteran for an examination to address the functional limitations that are a result of the Veteran's service connected disabilities, and address the impact that those limitation have on his ability to secure or follow a substantially gainful occupation. When addressing the impact on his ability to secure or follow a substantially gainful occupation, the examiner should consider the Veteran's occupational and educational history, but must not consider the Veteran's age or the impact of any non-service connected disabilities. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.