Citation Nr: 21075404 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-56 679 DATE: December 20, 2021 ORDER Entitlement to service connection for a kidney disorder, to include renal failure, is denied. FINDING OF FACT The preponderance of the evidence shows that a kidney disorder, to include renal failure, was not present in service or until many years thereafter, it is not caused by an injury while serving with a Reserve Component, it is not related to service or to an incident of service origin, and it not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a kidney disorder, to include renal failure, have not been met. 38 U.S.C. §§ 101, 106, 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1982 to May 1985. The Veteran also had a subsequent period of service with a Reserve Component. In January 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. In May 2021 the Board of Veterans' Appeal (Board) Remanded the appeal to obtain any outstanding Veterans' Administration (VA) and private treatment records as well as provide the Veteran with a VA examination to obtain etiology opinions. Tellingly, the post-Remand record shows that the regional office (RO) thereafter obtained and associated with the record all available and identified medical records. Also, while the appeal was in Remand status, the RO provided the Veteran a VA examination in August 2021. Moreover, the examiner thereafter provided etiology opinions, including an opinion as whether the appellant's kidney disorder was due to his military service as well as his service-connected back disability including the medications he takes to treat his back disability. Moreover, the Board finds that the record development satisfies the Remand and the VA examiner's opinions are adequate to adjudicate the claim under all theories of entitlement because the opinions considered the results of the examination, the in-service and post-service medical records, and the lay claims as well as because they are supported by controlling medical literature and medical reasoning. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or to try to obtain additional medical record is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claim The Veteran claims that he is entitled to service connection for a kidney disorder, to include renal failure, because, in substance, it due to his military service and/or the medication he takes for his service-connected back disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record shows the Veteran being diagnosed with chronic renal failure/chronic kidney disease. See, e.g., VA examination dated in August 2021. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability. See Davidson, supra. Next, the Board notes that service treatment records documented the Veteran's complaints and treatment for a penile discharge and urinary tract infections. See service treatment records dated in September 1983, October 1983, November 1983, and March 1985. However, service and Reserve Component treatment records, including Reserve component examinations dated in April 1986, November 1992, and August 1997, are negative for an injury, history, complaints, diagnoses, or treatment for a kidney disorder, to include renal failure. In fact, at the April 1986, November 1992, and August 1997 Reserve component examinations the Veteran did not report having a history of kidney problems and when examined no kidney problems were diagnosed. See Colvin, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty or an injury while service with a Reserve Component that caused his kidney disorder, to include renal failure. See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems, weights against his current claim. See Owens, supra. Overall, the Board must find the service records provide unusually highly probative evidence against this claim. They are very detailed, clearly indicating a problem that fully resolved. Similarly, the post-service record does not show the Veteran being diagnosed with any kidney disorder, to include renal failure, in the first year following his active duty service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for the claim. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the record does not show that the Veteran had a continued problem with a kidney disorder, to include renal failure, in and since service. In fact, as noted above, at the April 1986, November 1992, and August 1997 Reserve component examinations the Veteran did not report having a history of kidney problems and when examined no kidney problems were diagnosed. Likewise, and more importantly, the post-service is negative for any complaints, diagnoses, or treatment for a kidney disorder, to include renal failure, until approximately 1998-over a decade after his 1985 separation from his last period of active duty service. See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(b); Also see VA treatment record dated in January 1999 (discussed a 1998 study that first showed hydronephrotic kidney in the right and obstructions in both kidneys). This fact would seem to support the findings of the examiner in service who provided evidence against the claims, as noted above. Overall, the Board finds that the service and post-service medical records each provide evidence against the claim. Given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative evidence, overall, against the claim. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a kidney disorder, to include renal failure, since his last period of active duty. See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(b). For the reasons noted above, the Board finds that the post-service medical records provide highly probative evidence against the claim. The Board also finds that the preponderance of the evidence shows that a kidney disorder, to include renal failure, is not due to his military service. See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, in an almost illegible May 2015 report a doctor appears to provide a nexus opinion for all of the Veteran's disabilities, including his chronic kidney disease. However, the Board does not find this opinion probative because it is not supported by any clinical data or other rationale. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). On the other hand, the August 2021 VA examiner opined that the Veteran's kidney disorder, to include renal failure, is not due to his military service. Moreover, the Board finds this opinion the most competent and credible medical opinion of record because it is provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to evidence found in the record and controlling medical literature as well as because it is supported by medical reasoning. See Owens, supra; Guerrieri, supra. The Board also finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his kidney disorder, to include renal failure,). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's kidney disorder, to include renal failure, is not due to his military service. See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. The key question in this case is not if the Veteran injured himself or had a disease in service, or if the Veteran currently has the problems cited above. The key issue is whether the Veteran's military service, and any injury or disease he had in that service, was at least as likely as not (a 50 percent or greater chance) the cause of the current problem. The fact that he may, or may not, have sustained and disease or injury while on active duty does not always provide the basis to find that any of his current problem is the result of that injury or disease from many years ago. Sometimes, in some cases, the best evidence provides evidence against such claim. In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service, that provides highly probative evidence against the claim that clearly outweigh all evidence that supports the claim. The Board next finds that the preponderance of the evidence shows that the Veteran's a kidney disorder, to include renal failure, is not caused or aggravated by his already service-connected back disability to include the medication he takes to treat his back disability. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra. In this regard, in March 2021 Dr. Marco A. Ladino-Avellaneda opined that the Veteran had chronic kidney disease, stage IV, due to obstructive uropathy and "[i]n my personal experience and in medical literature it is known that obstructive uropathy causes chronic kidney disease. [The Veteran] has a history of neurogenic bladder with hydronephrosis, he had augmentation and cystoplasty in 1993." However, the Board does not find this opinion probative because the Veteran is not service connected for obstructive uropathy. See Owens, supra. On the other hand, the August 2021 VA examiner opined that the Veteran's kidney disorder, to include renal failure, is not caused or aggravated by his already service-connected back disability to include the medication he takes to treat his back disability. Moreover, the Board finds this opinion the most competent and credible medical opinion of record because it is provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to evidence found in the record and controlling medical literature as well as because it is supported by medical reasoning. See Owens, supra; Guerrieri, supra. The Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what is the relationship between his back disability and the kidney disorder, to include renal failure). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's kidney disorder, to include renal failure, is not caused or aggravated by his already service-connected back disability to include the medication he takes to treat his back disability. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.310; also see Rabideau, supra. Therefore, the Board finds that the criteria for establishing service connection on a secondary basis for a hysterectomy and a pulmonary embolism are not met because the Veteran is not service-connected for either of the disorders that she claims caused these disabilities. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra. It is vital for the Veteran to again understand that the Board has taken his concerns seriously (it was the bases of the Board's remand and the VA medical opinions in this case, that all provide evidence, in some way, against the claim), however, there is now overwhelming medical evidence against the claim from the VA examiner that the Board cannot ignore. Therefore, the Board finds that the claims of service connection for a kidney disorder, to include renal failure, is denied. 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.