Citation Nr: 21012256 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-34 769A DATE: March 3, 2021 ORDER 1. Service connection for a left nephrectomy is denied. 2. Service connection for bronchitis is denied. FINDINGS OF FACT 1. The Veteran has undergone a left nephrectomy. 2. The left nephrectomy was performed due to a congenital defect. 3. There was no superimposed kidney injury during service. 4. The Veteran has a current diagnosis of bronchitis. 5. The Veteran experienced bronchitis during service. 6. The bronchitis during service was not chronic and is not related to the current bronchitis. 7. The current diagnosis of bronchitis is related to cigarette smoking. CONCLUSIONS OF LAW 1. The criteria for service connection for a left nephrectomy have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for bronchitis have not been met. 38 U.S.C. §§ 1103, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to December 1991. The Veteran requested a Board of Veterans’ Appeals (Board) hearing on the October 2014 VA Form 9, Appeal to the Board, but did not appear for the scheduled hearing despite notification in writing of when the hearing was scheduled to occur. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). 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). Service connection generally requires (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. The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that in this case VA met the duties under the VCAA to notify and assist. In this case, neither the Veteran nor the representative has raised specific contentions regarding VCAA duties. Congress has prohibited the grant of service connection for disability due to the use of tobacco products. 38 U.S.C. § 1103(a); see also 38 C.F.R. § 3.300. Specifically, for claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service connected on the basis that it resulted from injury or disease attributable to a veteran’s use of tobacco products during service. 1. Service Connection for a Left Nephrectomy The Veteran seeks service connection for the removal of the left kidney (left nephrectomy). Specifically, the Veteran asserts that he had problems with his left kidney during service. See October 2014 VA Form 9. The medical evidence of record shows that the Veteran underwent a left nephrectomy in response to hydronephrosis that had resulted from ureteropelvic junction obstruction. See August 2019 VA examination. A May 1992 private treatment record shows that ureteropelvic junction obstruction is a congenital defect. Service connection is generally precluded by regulation for “defects” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). To establish service connection for a congenital defect, the evidence must show superimposed disease or injury during service. VAOPGCPREC 82-90. The term “defect,” viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90; Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). Obstruction of the left ureter at the ureteropelvic junction, which is structural in nature, is a congenital defect. The presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). As an obstruction of the left ureter at the ureteropelvic junction is structural in nature, it is a congenital defect. As the presumption of soundness at service entrance does not apply, service connection can only be granted for the preexisting congenital defect if there is a superimposed injury and if the superimposed injury aggravates (causes worsening in severity of) the preexisting congenital defect during service. After a review of all the evidence in this case, the Board finds that the weight of the evidence shows that there was no superimposed injury in this case. A September 2012 VA examiner opined that the left nephrectomy was less likely than not related to service. The VA examiner reasoned that there was no documentation to support this claim, and the Veteran had a history of alcohol and cocaine abuse, as well as irritable bowel syndrome (IBS). A November 2018 VA examiner stated that the Veteran was diagnosed with hydronephrosis in 2003, had kidney removal in 2003, and was diagnosed with congenital ureteropelvic junction obstruction in 1992. The November 2018 VA examiner stated that “the Veteran… has had a left nephrectomy… he has recovered from the surgery and does not have complications or sequelae.” Regarding a diagnosis of hydronephrosis, which led to the left nephrectomy, an August 2019 VA examiner stated “review of the medical records documents that the Veteran’s left hydronephrosis was pre-existing. It was secondary to ureteropelvic junction stenosis which is a congenital condition. The operative summary dated 5/13/1992 states that the ‘findings are compatible with that of a congenital ureteropelvic junction obstruction with secondary hydronephrosis.’” The August 2019 VA examiner further opined that “ureteral obstruction distal to the kidney pelvis causes hydronephrosis. This Veteran had distal obstruction which may have been partial and worsened with time. The hydronephrosis also increased over time. The Veteran’s hydronephrosis was most probably related to the worsening chronic obstruction.” An April 1992 private treatment record shows that the left kidney hydronephrosis was due to ureteropelvic junction obstruction (UPJ). A May 1992 private treatment record shows that UPJ is a congenital condition. The November 2018 VA examination shows that the left kidney has been removed, and that the Veteran has not experienced any superimposed injury associated with the removal of the left kidney. While both the December 1991 service treatment records and a June 2012 Statement in Support of a Claim show that the Veteran complained of left side pain and kidney problems during service, this is a symptom of the congenital defect that does not show a superimposed injury to the kidney. The Veteran has not specifically alleged or testified to any in-service kidney injury, and the weight of the evidence is against a finding of a superimposed injury on a kidney disability by service. Accordingly, service connection for a left nephrectomy must be denied. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 2. Service Connection for Bronchitis The Veteran claims that he has a current diagnosis of bronchitis that is related to active service. See October 2012 Notice of Disagreement. The Veteran asserted on an April 2012 Statement in Support of Claim that he made several trips to sick call during active service during which he was diagnosed with bronchitis, and that VA has also diagnosed him with bronchitis. A June 2012 VA examination shows that the Veteran has been diagnosed with bronchitis. The Board also finds that the Veteran experienced bronchitis during service. September 1989 service treatment records show that the Veteran had experienced bronchitis which had resolved, and that the Veteran was feeling much better at that time. A July 1990 screening note of acute medical care also shows that the Veteran experienced a productive cough for the previous two weeks. A September 1991 Report of Medical History conducted shortly before service discharge shows that the Veteran checked “No” to the question “Have you ever had, or do you now have a chronic cough?” An October 1991 Report of Medical Examination also shows that the Veteran’s lungs and chest were evaluated as clinically normal shortly before separation from service. This tends to show that, while the Veteran experienced bronchitis during service, the symptoms of the bronchitis resolved prior to separation from service. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current bronchitis did not have its onset during service and is not otherwise related to service. A June 2012 VA examiner opined that it is less likely than not that the Veteran’s bronchitis is secondary to the illness that occurred in 1989 during service, and that a review of medical records and an interview with the Veteran both reveal that the current bronchitis is most likely due to the prior and current history of smoking. As to medical professionals attributing the diagnosis of bronchitis to smoking, Congress has prohibited the grant of service connection for disability due to the use of tobacco products. 38 U.S.C. § 1103(a); see also 38 C.F.R. § 3.300. Specifically, as discussed above, for claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service connected on the basis that it resulted from injury or disease attributable to a veteran’s use of tobacco products during service. Thus, to the extent that the bronchitis has been attributed to smoking, service connection cannot be granted for bronchitis. The June 2012 VA examination states that the Veteran had a diagnosis of chronic bronchitis, was a smoker since age 22, had a first attack of bronchitis at age 25 in 1989, and last used an inhaler three years prior to the VA examination. A December 2018 VA examiner opined that the bronchitis is less likely than not related to active service. The VA examiner reasoned that bronchitis is generally an acute respiratory illness caused by or associated with a viral upper respiratory infection, and that bronchitis generally only becomes chronic due to underlying bronchial or pulmonary disease such as COPD or cystic fibrosis or bronchiectasis. The VA examiner explained that the Veteran has a history of cigarette smoking of one-half pack per day for many years, and that pulmonary function tests were ordered for this Veteran but were never completed. An October 2019 VA addendum letter shows that three attempts were made to contact the Veteran both via phone and letter to schedule the pulmonary function tests, and all attempts to contact the Veteran were unsuccessful. The Board finds that the preponderance of the lay and medical evidence is against a finding that the current bronchitis is causally related to service. The weight of the evidence demonstrates that the current bronchitis had onset after service and that the Veteran was not diagnosed with the current bronchitis until December 2009, many years after service discharge. See December 2009 VA treatment records. The evidence of record does not contain a competent opinion establishing a nexus between the current bronchitis and the in-service bronchitis. Rather, the weight of the evidence shows that the bronchitis the Veteran experienced during service resolved and was not chronic in nature, and that the current bronchitis had onset many years after service discharge, in December 2009. For these reasons, the Board finds that the weight of the evidence is against service connection for bronchitis; therefore, the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.