Citation Nr: 21012176 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-25 100 DATE: March 3, 2021 ORDER Entitlement to service connection for acute kidney disease secondary to service-connected coronary artery disease (CAD) status post myocardial infarction (claimed as a heart condition) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s current kidney disorder, to include as secondary to service-connected CAD, is unrelated to his period of active military service, nor was it caused or aggravated by a service-connected disability. 2. The Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for acute kidney disease secondary to service-connected coronary artery disease status post myocardial infarction (claimed as a heart condition) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from June 1972 to January 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans’ Appeals (VA) Regional Office (RO) made in April 2014 and in June 2017. This appeal is being adjudicated under the legacy appellate framework. The Veteran provided testimony pertinent to his claim for TDIU at a personal hearing before the Board in April 2016, and a transcript of the hearing is of record. The Veteran initially requested a personal hearing in the substantive appeal perfecting his service connection claim for acute kidney disease, but, in January 2018, the Veteran withdrew his request for a hearing. In February 2018, the Board remanded the Veteran’s claim for TDIU for further development. Further development in compliance with the Board’s previous remand instructions has been completed. In June 2019, the Board disposed of these matters by denying both of the Veteran’s claims. In October 2020, the Court of Appeals for Veterans Claims (Court) vacated the Board’s disposition and remanded these matters back to the Board for further consideration. The Board has substantially complied with the Court’s remand instructions. 1. Entitlement to service connection for acute kidney disease secondary to service-connected CAD status post myocardial infarction (claimed as a heart condition) is denied. At issue is whether the Veteran is entitled to service connection for acute kidney disease. The weight of the evidence indicates that the Veteran is not entitled to service connection. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted on a secondary basis for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. As an initial matter, the Board notes that the Veteran has been diagnosed with acute kidney disease secondary to medication usage. Accordingly, the first criterion for establishing service connection has been met. The Veteran’s service treatment records do not contain any complaints, treatment, findings or diagnosis consistent with a kidney disorder. Post-service treatment records document a history and treatment for the Veteran’s kidney disorder since 2005. The Board notes this is approximately 32 years after the Veteran left active duty service. Accordingly, there is no probative evidence that the Veteran’s kidney disorder had its onset during service, manifested to a compensable degree within one year of service, or that he has experienced symptoms of such continuously since separation from service. The Board also notes that the Veteran does not assert that his kidney disorder is directly related to service, that it manifested within a year of separation from service, or that he has experienced it continuously since service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, 1337-39. As such, service connection for a kidney disorder on a direct or presumptive basis is not warranted. It is the Veteran’s contention, however, that his kidney disorder is in fact secondary to a service-connected disability. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. The Veteran contends that his kidney disorder was caused by his service-connected CAD. The Veteran underwent a VA examination in May 2017. The examiner noted that the Veteran’s current symptoms include fluid retention increasing creatinine and GFR, weight fluctuation, and urinary retention. The Veteran experienced renal dysfunction; however, no dialysis or signs or symptoms due to renal dysfunction were shown. The examiner opined that the claimed Acute Kidney Disease secondary to medication usage is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected coronary artery disease status post myocardial infarction. In support of her opinion, the examiner stated that the Veteran’s current kidney condition most likely is a medication reaction from his antipsychotics and diabetic medication as well as lifestyle choices. In the October 2017 VA opinion, an examiner gave an opinion as to whether the Veteran’s kidney disorder was aggravated beyond the normal progression of the disease by his service-connected CAD. The examiner opined that it is not possible to clearly state his acute kidney disease was truly aggravated beyond normal progression by his service connected CAD/MI, as he has an overwhelming number of medical and mental health comorbidities and associated medications for all and these cannot be separated out. Further, the examiner stated that his kidney functions have been observed and managed in the past, but to focus fault on medications solely due to CAD/MI, without taking into account the tremendous number of medical and mental health comorbidities he has, and medications for same, would not be an objective review. Hence, the contention cannot be answered, as the rationale shows so many other medical comorbidities and medications to be of concern. Additionally, the examiner stated that mild, diffuse irregularities, in and of themselves (to include medication for this alone), are not likely to cause the currently mentioned contention. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the May 2017 examiner based her opinion on a review of the Veteran’s claims file and provided an adequate rationale for her conclusions. Specifically, the May 2017 examiner noted that it is a medication reaction from his anti-psychotics and diabetic medication as well as lifestyle choices that caused his kidney disease. Accordingly, the May 2017 VA examiner’s opinion is found to carry significant weight. The Board recognizes the Veteran’s contention that he is entitled to service connection for his kidney disorder as secondary to his CAD. Although lay persons are competent to provide opinions on some medical issues, the specific issue of determining the etiology of the Veteran’s kidney disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether the Veteran’s currently diagnosed kidney disorder is related to his service or a service-connected disability requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns little probative weight to the Veteran’s assertions that his kidney disorder is related to service or secondary to his CAD. After a thorough review of the evidence of record, the Board finds that the Veteran’s kidney disorder did not begin in service, was not incurred within one year of service, nor was it caused or aggravated by the Veteran’s service-connected CAD. The evidence of record does not establish any nexus between the kidney disorder and service or the Veteran’s currently service-connected CAD. While the Veteran may believe it is a natural consequence, medical evidence is required to establish that nexus. The Board notes that, in October 2020, the Court vacated the Board’s previous disposition of this matter and remanded the matter back to the Board for further consideration. Specifically, the Court instructed the Board to provide a statement of reasons why the Board considers the October 2017 opinion to be adequate. The Board considers the October 2017 opinion to be adequate, because it is based on a consideration of the Veteran’s prior medical history; and it is sufficiently detailed in order to ensure that VA’s evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for an acute kidney disease is denied. 2. Entitlement to TDIU is denied. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to December 2017 After a review of the evidence of record, the Board determines that TDIU is not warranted for the period prior to December 2017. The Veteran is service connected for CAD, evaluated as 60 percent disabling, hypertension, evaluated as 10 percent disabling, and stress fracture, left femur, evaluated at 0 percent disabling. The Veterans combined rating was 60 percent. Therefore, he does not meet the schedular criteria. During an examination in May 1999 the Veteran described a desire to work but notes the job he held most recent (December 1998) as a machine operator printing insulin syringes was not enjoyable and that he would like to work in his career field, counseling. With respect to the medical evidence, the Veteran’s treatment records from University of Nebraska Medical Center dated May 1999 indicate that the Veteran has not worked since December 1998 and is currently on disability. The medical evidence, however, shows that the Veteran has been unemployed due a nonservice-connected disabilities, to include obsessive compulsive disorder and anxiety. The Veteran underwent VA examinations in May 2013 for his heart condition and hypertension. The examiner indicated that the Veteran’s heart condition and hypertension did not affect his ability to work. Further, while the Veteran’s treating physician opined in January 2014 that the Veteran is completely unemployable, he did not mention a heart condition or hypertension as causes. During an April 2014 VA examination for the Veteran’s heart condition, the examiner opined that the Veteran is unemployable due to non-service-connected disabilities. The examiner further stated that if the Veteran only had his heart disability “he would be able to complete a sedentary job with light ambulation, light sitting, standing and walking at his own pace as well as filing, sorting, talking and completing office tasks with proper training and education. Further, he would have difficulty completing a physically laborious job due to his heart with repeated heavy lifting and physical work but would have success at a sedentary job.” A mental health note dated May 2014 indicates that the Veteran reported that he excelled in school and graduated third in his class. Additionally, the Veteran reported that he was accepted at Georgetown University, but he decided to attend Chadron State college instead and got his master’s degree in Career and Vocational Guidance. Further, the Veteran that he hasn’t worked since 2001 when he was employed as a Director of Rivendale and at Children’s Square USA. The Board finds that the Veteran’s service- connected CAD, hypertension, and stress fracture, left femur do not prevent him from obtaining and maintaining substantially gainful employment. The Board acknowledges the Veteran’s assertion that he is unemployable due to his heart condition. While the Veteran’s heart condition would have an impact on his occupational activities as it relates to his exertional levels and his hypertension affects his blood pressure however, the evidence shows that the severity of the Veteran’s conditions would not preclude him from performing light work or sedentary employment. Again, the issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the Board is cognizant that the Veteran would have difficulty working due to having problems related to his CAD/ischemic heart disease and hypertension, the preponderance of the evidence of record demonstrates that the Veteran is not precluded from securing and following substantially gainful employment due to his service-connected CAD and hypertension. The fact that a veteran is currently not working or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating. After reviewing all the evidence of record and considering the Veteran’s education and work history, the Board concludes that the preponderance of the evidence does not show that the Veteran would be unable to obtain or maintain substantially gainful work due to his service-connected disabilities. Accordingly, his claim for entitlement to TDIU is denied. From December 2017 and thereafter The Veteran was granted an increased rating for his service-connected CAD with a 100 percent rating effective December 6, 2017. The Board recognizes that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. It is noted that a 100 percent schedular rating is a higher benefit than a TDIU. Here, TDIU, if granted, would be based on the Veteran’s service-connected coronary artery disease, for which he is receiving a 100 percent schedular disability rating beginning December 6, 2017. His only other service-connected disabilities are hypertension rated as 10 percent disabling and stress fracture, left femur rated as 0 percent disabling, and at no point the evidence suggest that these disabilities affected the Veteran’s ability to work. Thus, a TDIU could not assist the Veteran in meeting the criteria for SMC under 38 U.S.C. § 1114 (s) and the issue of entitlement to a TDIU is moot. In addition, because his coronary artery disease is rated 100 percent for the entire period on appeal, the claim for TDIU benefits is moot because an award of a total schedular rating is the greater benefit. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.