Citation Nr: 21014576 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-38 341 DATE: March 15, 2021 ORDER Entitlement to service connection for bilateral kidney cysts, to include as secondary to prostatitis and/or urethritis, is denied. FINDINGS OF FACT 1. The evidence of record does not establish a causal relationship between an in-service event and the Veteran’s bilateral kidney cysts. 2. The preponderance of the evidence is against finding that the Veteran’s bilateral kidney cysts were either proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral kidney cysts have not been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from November 1972 to November 1976. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated November 2012 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. In January 2019, the Board denied the issue on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the portion of the January 2019 Board decision that denied entitlement to service connection for bilateral kidney cysts, to include as secondary to service-connected prostatitis and/or urethritis. Following this, in April 2020, the Board remanded the issue on appeal to obtain an addendum opinion addressing whether the Veteran’s kidney condition was aggravated by his service-connected prostatitis and urethritis under the standard articulated in Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). The issue has now been returned to the Board for adjudication. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also 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). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for bilateral kidney cysts, to include as secondary to prostatitis and/or urethritis The Veteran claims entitlement to service connection for bilateral kidney cysts, to include as secondary to prostatitis and/or urethritis. Following a thorough review of the Veteran’s medical records, the Board finds that he is not entitled to an award of service connection. As an initial matter, the Board finds that the Veteran has satisfied the first element of both direct and secondary service connection, a current disability. A review of the Veteran’s September 2012 VA examination shows the Veteran has cystic kidney disease that was diagnosed in 1994 and chronic renal insufficiency that was diagnosed in 2004. See VA Examination dated September 2012. Therefore, the Board finds that the Veteran has satisfied the first prong of both direct and secondary service connection, the existence of a current disability. The Veteran contends that his bilateral kidney cysts began in 1974. He also contends that his bilateral kidney cysts are secondary to his service-connected prostatitis and/or urethritis. On the Veteran’s separation examination, when asked if the Veteran had a tumor, growth, cyst, or cancer, the examiner marked yes. A notation explaining this reads, “Advised to have cyst removed from lower stomach.” It was also noted that the Veteran had a cyst in the left groin area, no treatment sought, except soaks, NCNS. Therefore, the Board finds that the Veteran has satisfied the second prong of direct service connection for a kidney disability: evidence of an in-service disease or injury. As to evidence of a service-connected disability, the Veteran is service-connected for chronic recurrent urethritis with recurrent prostatitis. Therefore, the Board finds that the Veteran has also satisfied the second prong of service connection on a secondary basis: evidence of a service-connected disability. With regards to whether a causal relationship exists between the Veteran’s current bilateral kidney cysts and his active duty service, and with regards to whether a causal relationship exists between the service-connected disability and the current disability, the Board finds the weight of the competent evidence does not support a nexus. The Veteran was afforded VA examinations in September 2012 and May 2020 during the period on appeal. Medical treatment records throughout the period on appeal document treatment for bilateral kidney cysts. The Veteran had a number of scans during this time, which span from the date the claim was filed in 2012 to the present, showing bilateral kidney cysts. In a September 2012 VA examination, the examiner concluded that the Veteran’s renal condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. He reasoned, The Veteran’s urinary track conditions as well as his difficulty and frequency of urination are linked to his enlarged prostate and urethral narrowing. However, it is less likely than not that the renal cysts are related to his history of urethral strictures and/or prostatitis as no causal relationship is reported in the medical literature. In a June 2018 VHA opinion, the examiner determined that it was less likely than not that the Veteran’s renal cysts are related to, caused by, or were incurred in or originated during his active duty military service. He provided, The rationale for this is that there is no documented medical evidence of the cysts during service, and such cysts may often be congenital. It is not likely, or less than 50 percent probable, that the Veteran’s renal cysts are either caused by or permanently aggravated by his service-connected prostatitis and chronic recurrent urethritis. Renal cysts are not usually associated with urinary tract infections. There is no scientific literature that supports the relationship of chronic urinary tract infections, chronic prostatitis, or chronic recurrent urethritis to the development of renal cysts. There was no mention in the Veteran’s Service Treatment Records of renal cysts from the review of the undersigned, so there would be no direct service connection. Thereafter, in a January 2019 BVA decision, the Board denied the Veteran’s claim. Following this, in October 2019, the Court vacated and remanded the portion of the January 2019 Board decision that denied entitlement to service connection for bilateral kidney cysts, to include as secondary to service-connected prostatitis and/or urethritis. In its April 2020 remand, the Board directed that a medical opinion be obtained addressing aggravation. The examiner was to specifically discuss whether the Veteran’s kidney condition was aggravated by his service-connected prostatitis and urethritis under the standard articulated in Ward. In May 2020, an addendum opinion was obtained. The VA examiner determined that the Veteran’s bilateral kidney cysts were “less likely than not aggravated beyond its natural progression by cystitis and prostatitis.” The VA examiner provided several renal ultrasound results with cyst measurements. The examiner then provided, VA medical record January 22, 2019 reflect cystic disease of kidney. A literature review revealed the following r/t the cause of polycystic kidney disease. According to Nature Reviews Disease primer, 2018 In patients with polycystic kidney diseases (PKDs), the kidneys contain multiple fluid-filled cysts, although other organs may also be affected. Although PKD is inherited monogenically, it is phenotypically, genically and allelically heterogeneous. Autosomal dominant PKD (ADPKD) is the most common form of PKD and is generally an adult-onset, multisystem disorder that is characterized by gradually growing renal cysts that start to develop in utero and can originate from all areas of the kidneys, although cysts usually form in the distal regions of the nephron and the collecting duct. Progressive fibrocystic renal disease in ADPKD is often accompanied by hepatobiliary changes or other extrarenal abnormalities, such as intracranial arterial aneurysms 1, 2. Mutations in PKD1 or PKD2, which encode polycystin 1 (PC1) and PC2, respectively, are the most common cause of ADPKD. The Board finds that this opinion substantially complies with the prior BVA remand directives and the requirements determined by the Court as it considers the proper worsening standard articulated by Ward. In a January 2021 appellate brief, the Veteran’s representative argued that the 2020 VA opinion is inadequate because the opinion was merely conclusory. The Board does not find this argument persuasive. The 2020 VA examiner based her opinion on a detailed description of the Veteran’s medical history and included a discussion of the disability and how it progresses with reference to known medical principles. The Veteran’s representative also “challenges the competency of the examiner” because she provided an opinion based on a pre-existing condition. In this case, the Board does acknowledge that a second opinion was requested by the RO which addressed aggravation of a preexisting condition, however, because the issue of a pre-existing condition is not relevant to this claim and the Board is relying on the aggravation opinion provided by the May 2020 VA examiner, the Board finds that this argument is not persuasive. There is no indication that the examiner answering a separate question which was put before her would make the opinion offered on the question at the heart of this case any less persuasive. The opinion relevant to this matter is detailed, includes citation to known medical principles, and addresses the complete medical history. The May 2020 VA examiner’s opinion provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds the opinion of the May 2020 VA examiner adequate and probative. The Board does acknowledge the Veteran’s own firmly held beliefs about the cause or aggravation of his claimed disability, but finds them less persuasive in this matter than the various medical opinions of record. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause or aggravation of his hearing kidney disability, especially in light of the multiple VA examiners’ well-reasoned conclusions to the contrary. See id. Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes a causal relationship between the Veteran’s bilateral kidney cysts and an in-service event. The Board also finds that, after reviewing all medical and lay evidence, there is no probative evidence of record which establishes a causal relationship between the Veteran’s bilateral kidney cysts and a service-connected disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.