Citation Nr: 21010447 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-28 989 DATE: February 24, 2021 ORDER Entitlement to service connection for chronic kidney disease is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s chronic kidney disease is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020); DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to January 1973, with service in Vietnam. He passed away in September 2019. His surviving spouse has been substituted in the current matter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA). This case was remanded in December 2016, November 2017, August 2018, and July 2019 for further development. In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for a kidney disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). “[P]ursuant to 38 C.F.R. § 3.310 (allowing for secondary service connection of a ‘disability which is proximately due to or the result of a service-connected disease or injury’), the relationship between a claimant’s condition and service may be established through a causal chain of diseases or disabilities. Thus, if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, [VA] generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service.” DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). As an initial matter, because the Veteran was in Vietnam during the Vietnam War era, see DD 214, in-service herbicide agent exposure is presumed. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although a July 2019 VA examiner originally opined that the Veteran’s renal failure was due to renal stones causing renal artery stenosis and not due to his history of hypertension, he thereafter opined in a September 2019 addendum that he was previously incorrect that hypertension was not a cause of his kidney failure. The ultrasound reports of the kidney did not show typical deterioration due to elevated blood pressure, but this “does not eliminate [hypertension] as a significant factor in the development of” chronic kidney disease. After review of his medical records prior to 2007, the Veteran’s blood pressure had poor control with significant elevation to cause nephrosclerosis. Thus, the examiner opined that the Veteran’s chronic kidney disease was, at least in part, due to a history of poor control of blood pressure prior to 2007. See September 2019 VA medical addendum. The July 2019 VA examiner’s addendum opinion that the Veteran’s chronic kidney disease was due, at least in part, to hypertension is corroborated by multiple treatment records stating that hypertension was the most likely cause of the disability. See February 2012 VA treatment records; January 2014 private treatment records. A February 2019 VA examiner also opined that the Veteran’s nephrosclerosis was due to hypertension. As noted above, the Board has a duty to investigate whether a causal disease or disability is related to service, in order to determine whether the claimed condition is related secondary to service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). Here, as noted above, the evidence shows that the Veteran’s chronic kidney disease was, at least in part, due to his hypertension. As such, following the holding in DeLisio, supra, the Board has a duty to determine if there is a causal relationship between the Veteran’s hypertension and service. In this regard, the Board notes that while hypertension is not recognized as a presumptive condition due to herbicide agent exposure, the National Academy of Sciences (NAS) has indicated that there is sufficient evidence of an association between hypertension and herbicide agent exposure. The NAS moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association. See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War: Update November 15, 2018. While the NAS evidence does not provide for a definitive association between herbicides and hypertension, it does provide positive evidence regarding said association. When there is a reasonable doubt, such should be resolved in the Veteran’s favor. As such, and mindful of regulation, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s hypertension cannot be conclusively disassociated from his herbicide exposure in service, but rather that the evidence supports such association. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because information obtained during the processing of the current claim reasonably indicates that the cause of the Veteran’s chronic kidney disease, hypertension, is associated with service, the Board finds that the Veteran’s chronic kidney disease is related to service, and service connection is warranted. See DeLisio, 25 Vet. App. at 54. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.