Citation Nr: 21070069 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-03 274 DATE: November 22, 2021 REMANDED Entitlement to service connection for a kidney condition is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from February 1957 to August 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a claimed kidney condition. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in March 2018. This matter was previously before the Board in April 2018 and January 2021, where it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Unfortunately, the Board finds that another remand is necessary in this case. In the Board's January 2021 remand, the AOJ was directed to obtain an addendum VA medical opinion regarding the etiology of the Veteran's claimed kidney disability, diagnosed as right kidney atrophy and chronic kidney disease. The selected examiner was requested to specifically address the significance of the Veteran's testimony that he had blood in his urine for several weeks following a traumatic fall during service. The Veteran asserts that this symptom was a manifestation of injury to his kidney at the time of the fall, resulting in his present disability. In the subsequent September 2021 VA medical opinion, the examiner opined that it was less likely than not that the Veteran's current kidney disability is related to service. The examiner stated that Veteran's medical records show that his chronic kidney disease is secondary to his hypertension and/or his right kidney atrophy, and that the right kidney atrophy was "likely due to congenital atrophy or possibly secondary due to [b]locked kidney artery (known as renal artery stenosis), [b]locked urinary tract, [k]idney stones or [l]ong-lasting kidney infections." He concluded based on that information that "the blood subjectively reported in the urine following the fall without a report of interval symptoms until the time of kidney diagnosis in 2012, makes it less likely than not the renal condition is due to the fall." The Board finds this opinion to be inadequate. Firstly, while the opinion does technically address the Veteran's claim of blood in the urine, it does not contend with the essential questions of whether it was indeed a manifestation of injury to the kidney and whether it is related to his present disability; the examiner simply suggests that it is not significant evidence compared to other potential etiologies listed. As such, the opinion does not comply with the January 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Secondly, the alterate theories of etiology that were proposed by the examiner congenital atrophy, blocked kidney artery, blocked urinary tract, kidney stones, and long-lasting kidney infections are not, on their face, supported by the Veteran's medical record. The examiner does not specify whether "congenital kidney atrophy" is a congenital defect versus a congenital disease, which would determine whether the condition is eligible for compensation benefits. See Cousin v. Wilkie, 905 F.3d 1316 (Fed. Cir. 2018) (holding that congenital defects are distinct from congenital diseases). In either case, the Veteran's enlitstment medical examination does not note that he entered service with congenital kidney atrophy and therefore, without additional evidence or rebuttal, the presumption of soundness presently bars the denial of service-connection on this basis. 38 C.F.R. § 3.304(b). As to the examiner's other theories of etiology, Veteran's medical records and examinations repeatedly note that he does not have a history of genitourinary obstructions or infections. The Board also notes that the Veteran's medical providers have found that his current kidney condition could reasonably be due to past kidney injury. A December 2017 treatment note reads: "Mr. Morton states he fell of[f] a ladder while carrying a load aboard a USS LST Parish around 1957 -1958 and hit his loin area- after this he states he had blood in his urine for nearly a month. Imaging shows atrophic right kidney - this can be seen with old injuries" (emphasis added). The Board finds that an addendum opinion is necessary to reconcile the examiner's alternate theories of incurrence with the history and opinions contained in the Veteran's medical records. The matters are REMANDED for the following action: Obtain an addendum opinion from the September 2021 examiner addressing the etiology of the Veteran's current kidney disability, diagnosed as right kidney atrophy and chronic kidney disease. If this examiner is unavailable, another qualified VA medical examiner should be selected. The addendum opinion must include the following: (a.) The examiner must address how the Veteran's lay reports of blood in his urine following his in-service fall from a ladder may or may not support a finding that he at least as likely as not (50 percent probability or greater) incurred a kidney disability as a result of the fall. An opinion simply acknowledging the Veteran's testimony without a rationale explaining the significance and weight of this symptomatology will be deemed inadequate. (b.) The examiner must provide a rationale to support the possible alternate etiologies for the Veteran's current kidney disability referenced in the September 2021 opinion, to include congenital kidney atrophy, blocked kidney artery, blocked urinary tract, kidney stones, and long-lasting kidney infections. The rationale must reference medical evidence to support these contentions, to include the Veteran's medical records. The examiner should also address the December 2017 treatment note stating that the Veteran's current kidney disability could indeed be caused by the fall the Veteran suffered during service. An opinion simply listing alternate possible etiologies, without more explanation for how these possible etiologies apply to the specific facts of the Veteran's situation, will be deemed inadequate. All pertinent evidence of record, including a copy of this remand order, must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. For the purposes of this opinion, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation. The examiner may not dismiss the Veteran's account of symptoms capable of lay observation solely on the basis that they are not documented in contemporaneous medical records. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.