Citation Nr: 21007043 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-10 223A DATE: February 8, 2021 ORDER Entitlement to service connection for nephrolithiasis, to include as due to herbicide exposure, and/or as secondary to diabetes mellitus, type II, is denied. FINDING OF FACT The Veteran’s nephrolithiasis did not appear in service or for many years thereafter, and is not otherwise related to service either due to herbicide exposure, or his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for entitlement to service connection for nephrolithiasis, to include as due to herbicide exposure, and/or as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 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 from November 1967 to June 1969. This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of a March 2020 Board remand decision which directed the Regional Office (RO) to complete additional development, including the provision of a VA medical examination. 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). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as diabetes mellitus, malignant tumors, calculi of the kidney, cardiovascular-renal disease and endocarditis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). Finally, VA regulations state that a veteran who served during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307 (a)(6)(iv). The units or other military entities that the DoD has identified as operating in or near the Korean DMZ during the qualifying time period are listed in a table in the VA Adjudication Procedure Manual, M21-1MR (M21-1), Part IV.ii.1.H.3.b (December 31, 2019). Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Hodgkin’s disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea) and, as is relevant here, diabetes mellitus. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309 (e). 1. Entitlement to service connection for nephrolithiasis, to include as due to herbicide exposure, and/or as secondary to diabetes mellitus, type II The Veteran contends that service connection should be established for nephrolithiasis (kidney stones). The Veteran has provided alternative theories of entitlement to service connection for kidney stones, direct and secondary. Regarding the direct service connection theory of entitlement, he claims that while his first treatment for kidney stones occurred in 1974 (5 years after separation), that they must have begun years earlier. The secondary service connection theory of entitlement is premised on an allegation that his kidney stones were either caused by or aggravated by his service-connected diabetes mellitus or as the result of exposure to herbicidal agents while he was stationed in Korea. It is asserted that this may be the result of his exposure to defoliants while serving in South Korea. The service connection claim for nephrolithiasis on a presumptive basis as due to herbicide agent exposure, must fail because the herbicide presumption set forth in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 does not apply. Specifically, kidney stones are not one of the enumerated disabilities to which the presumption applies. Additionally, even if service connection for kidney stones was available under 38 C.F.R. § 3.307, the Veteran’s records do not indicate if he was stationed at or near the DMZ. Next, while service connection under 38 C.F.R. § 3.307 is not available for the Veteran’s service connection claim, service connection may still be established if his kidney stones can be shown to be either directly related to service, manifested to a compensable degree within a presumptive period following separation from service, or due to, or aggravated by a service connected disability. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994) As an initial matter, the Board notes that the Veteran has a current diagnosis of kidney stones. A review of the Veteran’s service treatment records (STRs) does not demonstrate any signs, symptoms, treatment, or a diagnosis of kidney stones or a related disorder while he was in service. In fact, while the Veteran had some urethral complaints in service, there is no indication that these were more than isolated occurrences and the Veteran was not diagnosed with kidney stones or another disorder. Additionally, the Veteran’s May 1969 separation examination and self-reported report of medical history are both silent for any indication of a kidney disorder, including kidney stones. The Veteran’s post-service medical records are silent for the occurrence of a kidney disorder until June 2007, although the Veteran’s assertion that he underwent surgery in 1974 to remove a large kidney stone is taken as corroborated. Even at that point, his first occurrence of kidney stones was approximately 5 years after separation. Moreover, a single occurrence of kidney stones between 1974 and 2007 does not point to a disorder that can, by definition, be defined as chronic. Therefore, service connection based upon continuous symptoms include the chronic disease presumption under 38 C.F.R. § 3.307 is not warranted. The Board recognizes the statements from the Veteran regarding his claimed history of kidney since service. While the Veteran is competent to report that he experienced these symptoms, including pain, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless insufficient in establishing a relationship between his disorder and service. Specifically, in addition to the fact that years elapsed between active duty service and his current diagnosis it is of importance to the Board that he was given the opportunity to mention any such symptoms at his separation physical examination in May 1969. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Next, although continuous symptoms have not been shown, service connection may nonetheless be established if the evidence otherwise indicates a nexus between active duty service and his current symptoms. In this case, however, the competent evidence fails to establish a relationship between active duty and/or another service-connected disability and the Veteran’s current symptoms. To this end, the Veteran was afforded VA examinations in March 2012, August 2019, and April 2020 to evaluate the nature and etiology of his kidney stones. The March 2012 examiner noted the Veteran’s 1974 treatment for kidney stones and noted the Veteran’s statements regarding his history of kidney stones occurring every 3-5 years since then. The examiner opined that the Veteran’s kidney stones were less likely than not caused and/or aggravated by his service-connected diabetes mellitus, type II, noting that the current medical literature does not support a finding that kidney stones are a known complication of diabetes. Next, the August 2019 VA examiner noted the Veteran’s history of symptoms and his diagnoses for kidney stones and diabetes mellitus, type II. The examiner opined that the Veteran’s kidney stones was less likely than not caused and/or aggravated by his service-connected diabetes mellitus, type II. The examiner provided a detailed review of the Veteran’s medical history noting that there was no indication of a chronic disorder, obesity due to diabetes, or that his diabetes had caused or aggravated his kidney stones beyond a natural progression. The April 2020 examiner evaluated the Veteran’s kidney stones in order to determine if they could have resulted from exposure to herbicide agents while he was in service. The examiner noted that several years passed between the Veteran’s separation and the fist occurrence of his kidney stones, and while he experienced some urethral complaints in service there is no evidence to support the claim that these complaints were related to his kidney stones. The examiner concluded that it was less likely than not that the Veteran’s kidney stones were related to potential exposure to herbicides in service. While the Veteran asserts that his kidney stones are the result of his exposure to herbicide agents in service and/or his service-connected diabetes mellitus, type II, he is not competent as a lay person to provide an opinion as to the etiology of that disorder in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection cannot be granted as the Veteran’s kidney stones have not been shown to be related to service, either via direct service connection, or by their relation to another service-connected disability. For the above reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for nephrolithiasis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel