Citation Nr: 21007369 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-11 631 DATE: February 9, 2021 ORDER Entitlement to service connection for a renal carcinoma, s/p right radical nephrectomy (herein referred to as a “kidney removal”), is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is remanded. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran’s kidney removal is related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a kidney removal, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to July 1979. This appeal is before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Veteran seeks entitlement to service connection for a kidney removal that he alleges is the result of in-service kidney issues. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the service treatment records (STRs) indicate the Veteran received treatment in August 1977 for painful urination. In January 1978 he received treatment for kidney stones. On a February 7, 1978 report of medical history form, he indicated that he experienced kidney stones or painful urination. Also, a February 7, 1978 report of medical examination reveals he was diagnosed with a “urinary tract disorder- type undetermined.” Lastly, on February 14, 1978 he received treatment for a urinary tract disorder. In 2006, private treatment records indicate he had his kidney removed in South Korea. In September 2020, during the Veteran’s Board hearing he provided information related to his kidney removal. Also, in September 2020, he submitted a statement to the Board reiterating his belief that his in-service kidney stones and other health issues resulted in his kidney removal. Additionally, in September 2020, a private medical opinion which included a review of the claims file and a recitation of complaints and medical history was entered into the claims file. A physician, Dr. S.B., opined it was at least as likely as not his kidney removal was the result of active duty service. The physician noted his in-service kidney stones represent an “important risk factor” in the development of certain cancers. The physician also cited to multiple studies describing his type of cancer and typical risk factors associated with the cancer’s development. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran’s kidney removal is the result of active duty service. The Board recognizes that the Veteran experienced multiple in-service incidents of kidney stones, painful urination, and a urinary tract disorder and was diagnosed with kidney cancer and underwent a kidney removal procedure. Thus, the first and second elements of service connection are established. See Shedden, 381 F.3d at 1167. As to a medical nexus, the Board assigns significant probative value to the September 2020 private medical opinion which determined that in-service kidney stones represented an “important risk factor” in the development of the Veteran’s kidney cancer. As such, considering the evidence of record does not contain any competent or credible medical opinion or evidence to counter the September 2020 medical opinion, the Board finds it to be most probative as to the nature and etiology of the Veteran’s kidney removal. In cases such as this when there is an approximate balance of positive and negative evidence the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. As such, the Board finds the evidence of record is in relative equipoise as to whether the Veteran’s kidney removal was the result of active duty service. Hence, the benefit of the doubt rule applies. Id. Accordingly, the Veteran’s claim of entitlement to service connection for a kidney removal is granted. REASONS FOR REMAND The Veteran seeks entitlement to service connection for an acquired psychiatric disorder to include PTSD as a result of an alleged in-service abduction. The VA has a duty to assist the Veteran obtain relevant records to support his claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding that VA’s duty to assist specifically includes requesting information from other Federal departments); see also 38 C.F.R. § 3.159(c)(2). To assist in the procurement of service personnel records, VA will make as many requests as necessary to obtain the records from a Federal department or agency. Id. Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Turning to the evidence of record, his STRs reveal that during a February 1978 report of medical history he indicated that he experienced depression or excessive worry. In January 2012, VA medical records indicate he was diagnosed with depression and anxiety. In an August 2013 statement to the Board the Veteran detailed his alleged in-service event; specifically, that “while traveling to visit with my fiancé, I was detained because they thought I was a spy.” In September 2020, during the Veteran’s Board hearing he stated the he receives treatment for his acquired psychiatric disorder with the VA and outside of the VA through Medicare. Also, in September 2020, he submitted a statement to the Board that provided the details of his alleged in-service abduction which he described as follows: When I was in the Army, stationed in Germany, I went on leave and was taken into custody. I was held by German police for 4 hours and was chained to a wall. I was very frightened because they did not believe I was a US Soldier. They had guns and pointed the guns at me. After I got out of the Army, I was not the same… I never told anyone about this event because I was young and did not speak very good English and I didn’t want to get into more trouble. Additionally, in September 2020, a private medical opinion from a psychologist, Dr. A.H., was entered into the claims file. The psychologist determined it was at least as likely as not his acquired psychiatric disorder is the result of his PTSD and/or developed as a consequence of his in-service event. The psychologist did not provide an opinion as to whether his depression is the result of his active duty service. After review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is insufficient for the Board to render a decision. First, the Board has a duty to assist the Veteran obtain relevant records to support his claim. See Murincsak, 2 Vet. App. at 370 (finding that VA’s duty to assist specifically includes requesting information from other Federal departments); see also 38 C.F.R. § 3.159(c)(2). Here, the VA has not fully satisfied its duty to seek relevant records for this Veteran. Specifically, during the September 2020 hearing he stated that he not only received treatment from the VA for his acquired psychiatric disorder, but he also receives treatment “outside of the VA” through Medicare. However, the evidence of record does not reflect the receipt of these private treatment records or Medicare records. As such, a remand is required to fulfill the Board’s duty to assist the Veteran acquire outstanding records related to his acquired psychiatric disorder. Second, as the stressor identified by the Veteran is a non-combat stressor, there must be documentation or information to corroborate the stressors for service connection based upon PTSD. 38 C.F.R. § 3.304(f). However, VA has not attempted to corroborate the Veteran’s alleged in-service stressor. Indeed, the evidence of record does not contain any of the Veteran’s service personnel records that may provide details pertinent to his claim. As the VA has a duty to search for records that would assist a Veteran in the development of his claim and as the VA has not satisfied its duty to this Veteran, additional development is necessary. Third, in addition to the above, the Board finds the Veteran that the Veteran must be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder that takes into consideration the September 2020 private medical opinion. See generally McClendon, 20 Vet. App. at 84. As such, the Board finds a remand is necessary to also acquire a VA medical examination. This matter is remanded for the following actions: 1. Ask the Veteran to identify any other outstanding private treatment records, to include any outstanding Medicare records, for which he requests assistance obtaining and associate them with the claims file. 2. Obtain the Veteran’s complete service personnel records. 3. Attempt to corroborate the Veteran's in-service stressor relating to his alleged abduction while on leave in Germany. Request from the Veteran a statement containing as much detail as possible regarding the in-service stressor, to include names, dates, places, descriptions of the events, etc. to the extent available. Subsequently, make a determination if the reported stressor can be corroborated. 4. Following the above, the Veteran should be afforded a VA mental disorders examination to determine the nature and etiology of any diagnosed psychiatric disorder(s). a) If PTSD is diagnosed, the opine whether is at least as likely as not the diagnosed PTSD is related to any corroborated in-service traumatic incident(s). b) For all psychiatric disorders other than PTSD, opine whether any such disorder(s) is at least as likely was incurred in or as a result of active duty service. In formulating the requested opinions, the examiner shall consider the September 2020 private psychological examination report and opinion by A.H., Ph.D. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question 5. After the above is completed, conduct any other development deemed necessary and adjudicate the Veteran’s claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.