Citation Nr: 21071173 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 20-26 637 DATE: November 30, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral kidney disorder, to include as secondary to Parkinson's Disease (PD), is reopened. REMANDED Entitlement to service connection for a bilateral kidney disorder, to include as secondary to PD, is remanded. FINDINGS OF FACT 1. VA last denied the Veteran's claim for service connection for a bilateral kidney disorder loss in May 2011. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. 2. Evidence received since the final May 2011 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral kidney disorder. CONCLUSIONS OF LAW 1. The May 2011 rating decision denying the claim for service connection for a bilateral kidney disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria to reopen the claim for service connection for a bilateral kidney disorder based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In the June 2020 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. In January 2021, he withdrew the hearing request. Issue 1: Whether VA has received new and material evidence to reopen a claim of service connection for a bilateral kidney disorder New and Material Evidence General Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Also, the general rule is that judicial interpretations of statutes apply retroactively to cases that are "open for direct review" but not to those that have become final and are being challenged on collateral review via CUE motions. George v. Wilkie, 30 Vet. App. 364, 376 (2019). See also Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively"). Merits Bilateral Kidney Disorder The AOJ last denied the Veteran's claim for service connection for a bilateral kidney disorder in May 2011, finding the Veteran did not meet the in-service incurrence or nexus prongs of service connection on a direct theory of entitlement. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. Therefore, the May 2011 rating decision became final. At the time of the AOJ's May 2011 denial, the record consisted, as relevant here, of service treatment records and VA treatment records. In August 2018, the AOJ service connected the Veteran's PD. It found his PD was presumptively linked to herbicide agent exposure in Vietnam. It rated the PD as 30 percent disabling, effective July 17, 2018. In February 2020, the AOJ recharacterized the Veteran's PD. Instead of a single disability, the AOJ service connected different bodily systems the PD impacted. These included 1) PD-related muscle rigidity of the right upper extremity, 30 percent disabling as of November 13, 2017 2) PD-related muscle rigidity of the left lower extremity, 20 percent disabling as of November 13, 2017 3) PD-related muscle rigidity of the right lower extremity, 20 percent disabling as of November 13, 2017 4) PD-related muscle rigidity of the left upper extremity, 20 percent disabling as of November 13, 2017 5) PD-related limitation of automatic facial movements, right side, 10 percent disabling as of November 13, 2017 6) PD-related limitation of automatic facial movements, left side, 10 percent disabling as of November 13, 2017 7) PD-related bowel disturbance, 10 percent disabling as of November 13, 2017 8) PD-related chewing difficulty, right side, 10 percent disabling as of November 13, 2017 9) PD-related chewing difficulty, left side, 10 percent disabling as of November 13, 2017 10) PD-related speech changes, 10 percent disabling as of November 13, 2017 11) PD-related erectile dysfunction, 0 percent disabling as of November 13, 2017 12) PD-related loss of sense of smell, 0 percent disabling as of November 13, 2017 In April 2021, the Veteran's counsel stated: Regarding service connection for a kidney condition, [the Veteran] has recently received service-connection for Parkinson's disease and a slew of associated disabilities. Research and literature shows a definitive connection between Parkinson's treatment and the subsequent development of kidney failure or other disease. Thus, whether [the Veteran's] service-connected Parkinson's Disease has led to or aggravated his renal failure must be addressed and developed. To support her argument of the "definitive connection between Parkinson's treatment and the subsequent development of kidney failure or other disease," the counsel provided two hyperlinks. These links were: https://www.parkinson.org/Living-with-Parkinsons/Managing-Parkinsons/Diet-and-Nutrition/Common-Nutritional-Concerns-in-Parkinsons https://pubmed.ncbi.nlm.nih.gov/12165940/ The first comes from the Parkinson's Foundation. In relevant part, it says: Dehydration Parkinson's medicines can raise dehydration risk, which can lead to confusion, weakness, balance problems, respiratory failure, kidney problems and even death. Work toward drinking eight 8-ounce glasses of fluid daily to stay hydrated. Dehydration can also lead to low blood pressure or orthostatic hypotension. The second is a medical journal article entitled "Rhabdomyolysis as a complication of Parkinson's disease." The Board construes the counsel to contend that the Veteran's PD led to rhabdomyolysis which, in turn, led to his kidney disorder. VA service connecting the Veteran's PD and the April 2021 counsel brief are new. They are also material because they help substantiate the claim through a new theory of entitlement. Reopening of the Veteran's claim for service connection for a bilateral kidney disorder based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND In July 2018, the Veteran claimed service connection for "kidney failure due to exposure to Agent Orange." In April 2020, a Decision Review Officer (DRO), as part of a DRO hearing, noted: The only other issue he was concerned with here was the kidney issue. He states that it is felt that the kidney disorder may be due to treatment for Parkinson's disease. He indicates that medication taken for Parkinson's disease has to be carefully selected so as to not exacerbate the kidney issue. He asks that we consider a link between Parkinson's disease and kidney disorder. In May 2021, the Board remanded based upon the April 2021 counsel brief cited above. In June 2021, a VA examiner found no etiological link on a direct or secondary theory of entitlement. For direct, the examiner opined that "there are no specific events or injuries during service which are established primary etiologies of chronic kidney disease." For secondary, on a causation basis, the examiner opined "Parkinson's disease is not an established primary etiology of chronic kidney disease in the medical literature." For secondary, on an aggravation basis, the examiner opined "there is no established diagnosis of Parkinson's disease." The AOJ, knowing that Parkinson's disease was service connected, required an addendum in September 2021. The AOJ's instructions were: The examiner opined the Veteran's kidney condition was not aggravated beyond its natural progression by his service-connected Parkinson's disease with the following rationale: "there is no established diagnosis of Parkinson's disease." Please see the prior DBQ of 8/16/2018 (TAB AA) and the VAMC Richmond treatment records (TAB AB). The VAMC treatment records show a diagnosis of Parkinson's disease was confirmed by a VA neurologist on 11/8/2018 (TAB AB). Based on the confirmed diagnosis of Parkinson's disease please provide an addendum medical opinion regarding aggravation: Is it at least as likely as not (a 50 percent or higher probability) that the Veteran's current kidney condition, was aggravated by his service-connected Parkinson's disease? Potentially Relevant Evidence: TAB AA: C&P Exam, DBQ NEURO Parkinson's disease, VBMS receipt date 8/16/2018 TAB AB: CAPRI, VAMC Richmond treatment records show diagnosis of Parkinson's disease (page 5), VBMS receipt date 11/5/2018 TAB AC: BVA Remand, VBMS receipt date 5/27/2021 TAB AD: DBQ Medical Opinion, VBMS receipt date 8/13/2021. We appreciate your time and attention to this case. In turn, the examiner opined Not aggravated. Chronic kidney disease is currently controlled with peritoneal dialysis and does not necessitate any use of medication, this falls within the projected natural history the condition and does not represent aggravation (beyond natural progression). The Board finds the examiner should have opined on the specific arguments the Veteran's counsel made in April 2021. Because he did not, remand is warranted for an addendum opinion. Additionally, the Board also finds the examiner did not opine on the relationship, if any, between the Veteran's presumed herbicide agent exposure and his kidney disorder. Because he did not, remand is warranted for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the medical professional who examined the Veteran in June 2021 for his kidney disorder claim. If he is not available, arrange for a qualified medical professional to substitute. After reviewing this Remand and the claims file, the medical professional should opine: a) What medications has the Veteran taken to treat his Parkinson's disease? b) Is it at least as likely as not (50 percent probability) that the medications the Veteran has taken to treat his Parkinson's disease, either individually or combined, CAUSED his bilateral kidney disorder? Why or why not? c) Is it at least as likely as not (50 percent probability) that the medications the Veteran has taken to treat his Parkinson's disease, either individually or combined, AGGRAVATES his bilateral kidney disorder? Why or why not? d) Does the Veteran now have, or has he ever had, rhabdomyolysis? If yes, explain when and cite the evidence. e) If the answer to (d) is yes, is it at least as likely as not (50 percent probability) that the Veteran's Parkinson's diseases CAUSED his rhabdomyolysis? Why or why not? f) If the answer to (e) is yes, is it at least as likely as not (50 percent probability) that the Veteran's rhabdomyolysis CAUSED his bilateral kidney disorder? Why or why not? g) If the answer to (e) is yes, is it at least as likely as not (50 percent probability) that the Veteran's rhabdomyolysis AGGRAVATES his bilateral kidney disorder? Why or why not? h) Is it at least as likely as not (50 percent probability) that the Veteran's bilateral kidney disorder began during, or was otherwise caused by, military service? Why or why not? In answering question (h), the examiner is advised that VA presumes the Veteran was exposed to herbicide agents when he served in Vietnam. Therefore, the examiner must address the impact, if any, this herbicide agent exposure had on the Veteran's development of his bilateral kidney disorder. A complete rationale should be provided for the opinions rendered. In addition, the examiner should address the two articles referenced by Veteran's counsel in April 2021: https://www.parkinson.org/Living-with-Parkinsons/Managing-Parkinsons/Diet-and-Nutrition/Common-Nutritional-Concerns-in-Parkinsons; and https://pubmed.ncbi.nlm.nih.gov/12165940/. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.