Citation Nr: 21022907 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-07 151 DATE: April 19, 2021 ORDER The previously denied claim of entitlement to service connection for a kidney condition is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for kidney disease (previously claimed as a kidney condition) is remanded. FINDINGS OF FACT 1. In a January 1983 rating decision, a Department of Veterans’ Affairs (VA) Regional Office (RO) denied service connection for a kidney condition; the RO mailed notification of its decision and of the Veteran’s appellate rights to his address of record. 2. The Veteran did not initiate an appeal of the RO’s January 1983 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence received since the time of the RO’s January 1983 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s January 1983 rating decision denying service connection for a kidney condition is final. 38 U.S.C. § 4005 (1982); 38 C.F.R. §§ 19.118, 19.153 (1982). 2. New and material evidence has been received to reopen the claim for service connection for a kidney condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1974 to June 1982 and from September 1990 to June 1991. He also had service in a reserve component of the military. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a VARO. In February 2020, the Veteran and his wife testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in April 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. At the time of that remand, the claims file contained few service treatment records (STRs) and only a few records of any kind with entry dates prior to 2009. In the November 2016 rating decision on appeal, the RO characterized the Veteran’s claim for service connection for kidney disease as an original claim, rather than as a claim to reopen. The rating decision codesheets of record also indicated (and still indicate) that the Veteran’s current application for service connection for kidney disease was (and is) an original claim. In addition, the Board noted in the April 2020 remand that complete STRs were unavailable, and that VA therefore had a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt doctrine. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). For reasons that remain unclear, in November 2020, following the Board’s April 2020 remand and the RO’s subsequent readjudication of the claim in August 2020, numerous documents with entry dates predating 2009 were added to the claims file. These documents include not only additional STRs, but also a prior application for service connection for a kidney condition, a January 1983 rating decision denying the claim, and a notification letter to the Veteran regarding the denial dated that same month. Inasmuch as the evidence of record now clearly demonstrates that the Veteran’s claim for service connection for a kidney condition was previously denied, the Board must address the question of whether new and material evidence has been received to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a kidney condition. As is now clear from the record, the Veteran first filed a claim for service connection for a kidney condition in July 1982. A January 1983 rating decision denied the claim. He was notified of the decision, and of his appellate rights, by letter dated that same month. No new and material evidence was received during the one-year period following mailing of notice of the decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 U.S.C. § 4005 (1982); 38 C.F.R. §§ 19.118, 19.153 (1982). Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The January 1983 rating decision denied service connection for a kidney condition because no diagnosis had been established. The evidence before VA at the time of that decision consisted, in part, of the Veteran’s available STRs, a VA examination report, and the Veteran’s lay statements. The Board finds that new and material evidence has since been received with respect to the claimed condition. A July 2020 VA examination report notes diagnoses of diabetic nephropathy and hypertensive kidney disease. This evidence demonstrates that the Veteran has a current diagnosis, which relates to a previously unestablished fact, and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim for service connection for a kidney condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for kidney disease is remanded. As noted above, this case was previously before the Board in April 2020, when it was remanded to the AOJ for additional development. Because the development sought was not fully completed, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). As an initial matter, the Board notes that even though the claims file contains additional STRs that were not associated with the claims file at the time of its April 2020 remand, a review of those records still indicates that there are at least some missing STRs. For example, the claims file does not contain entrance examination reports for either period of the Veteran’s active service. The Board’s obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt doctrine therefore remains heightened. See O’Hare, Pruitt, supra. In its April 2020 remand, the Board directed the AOJ to ask the Social Security Administration (SSA) to provide copies of any relevant records it had in its possession. It also instructed the AOJ to ask the Veteran to provide a release for complete records of treatment from the facility where a renal biopsy was performed in 1990 and from D.B., M.D. at New Jersey Urology, and to identify and provide appropriate releases for any other private care providers who had treated him for the issue(s) on appeal. The Board further noted that the Veteran had testified at his February 2020 hearing that he was going to submit a nexus statement from Dr. B. Because a nexus statement was not of received, the Board also instructed the AOJ to inform the Veteran and his representative that the claims file did not contain any statements regarding the etiology of his kidney disease from Dr. B., and to invite him to submit any such statements that might be in his possession. Finally, the Board instructed the AOJ to afford the Veteran a VA examination in connection with his claim. In May 2020, the AOJ obtained and associated with the claims file records from the SSA. That same month, the AOJ also sent the Veteran a letter asking him to provide a release for records from the facility where his renal biopsy was performed in 1990 and from Dr. B., and to identify and provide releases for records from any other private care providers. To date, the Veteran has not responded to that request. In this regard, the Veteran is reminded that VA’s duty to assist in the development and adjudication of his claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential to the outcome of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam). If he is to have a reasonable opportunity to prevail on his claim, he must respond with specificity to VA’s requests for additional information. Otherwise, his claim may be denied. While the AOJ substantially complied with the Board’s remand directive regarding private records, there is no indication that it informed the Veteran and his representative that the claims file did not contain any statements regarding the etiology of his kidney disease from Dr. B., and it did not invite him to submit any such statements that might be in his possession. Because the AOJ did not substantially comply with the Board’s remand directive regarding a possible etiological statement from Dr. B., another remand is required. Stegall, supra. Regarding a VA examination, the Board noted in its April 2020 remand that a September 2016 private treatment record referenced the 1990 renal biopsy which was noted to show proteinuria and hematuria, but which also categorized the biopsy as non-diagnostic. In its remand directives, it specifically instructed the VA examiner to address the results of the 1990 renal biopsy, if available, and the Veteran’s contention that his exposure to aircraft fuels in service caused his kidney disease(s), and to comment on the significance of the findings of proteinuria and hematuria in the 1990 renal biopsy, as noted in the September 2016 private treatment record. The Veteran was afforded a VA examination in July 2020. The examiner found that the Veteran had diagnoses of both diabetic nephropathy and hypertensive kidney disease. She also noted that available records did not show any diagnosis or treatment for kidney cancer. She stated that per available records, the etiology of the Veteran’s diagnoses were hypertension and diabetes mellitus, Type II. She further noted that the most recent available medical records were from September 2015, and that there were no available records since that time. She offered a negative nexus opinion, reasoning that STRs were negative for a diagnosis or treatment of any renal condition during active duty, that his current diagnosis of diabetic nephropathy was attributed to his non-service connected diabetes and his hypertensive nephropathy was attributed to his non-service connected hypertension. She also stated that the records were silent for the renal biopsy cited by the Board in its April 2020 remand. The Board notes that the July 2020 VA examiner did not comment on the significance of findings of proteinuria and hematuria in the 1990 renal biopsy. While the biopsy report is unavailable, and the Veteran has not cooperated in identifying where the biopsy was performed, the Board emphasizes that the September 2016 private treatment note indicates that proteinuria and hematuria were present at the time of the 1990 biopsy. The examiner also did not address the Veteran’s contention that his exposure to aircraft fuels in service caused his kidney disease(s). Still further, the examiner’s finding that the file contained no records after 2015 is inconsistent with the evidence of record, which at that time contained records through at least 2016, and importantly, the September 2016 private treatment record addressing the 1990 renal biopsy. Under the circumstances, an addendum opinion is warranted. See Stegall, supra. The Board also notes that the additional evidence with entries dated prior to 2009 was not associated with the claims file until after the July 2020 VA examiner offered her opinion, and she was therefore unable to consider it. Much of that evidence is relevant to the Veteran’s claim. For example, a February 1982 STR indicated that the Veteran’s adult illnesses included ‘kidney infection’ with hematuria in 1981. An August 1982 VA examination noted that the Veteran had hematuria and kidney trouble in February 1982, and while the examination itself was normal at that time, the examiner diagnosed the Veteran with a history of kidney infection. Laboratory testing in August 1982 indicated red blood cells too numerous to count in the Veteran’s urine. In a September 1987 STR, an examiner noted hematuria and frequent urination, but also noted that all work up was negative in June 1987. In a June 1988 STR, the Veteran reported that he had had kidney stones or blood in his urine. At his June 1991 separation examination for his second period of active service, the examiner noted that the Veteran had been treated by a kidney doctor but offered no further information as to why the Veteran was treated or whether that treatment resulted in a diagnosis. December 1993 STRs noted that chronic illnesses included kidney disease as well as high protein in the Veteran’s urine, and an August 2006 record from R.H., M.D. (which is included in the Veteran’s SSA records), noted a history of renal insufficiency and a history of gout going back about 10 to 15 years. Inasmuch as this evidence is highly relevant to the Veteran’s claim and was not previously associated with the claims file, the VA examiner should consider this evidence in formulating her opinion. This matter is REMANDED for the following action: 1. Inform the Veteran and his representative that the claims file does not contain any statements regarding the etiology of his kidney disease from Dr. B., and invite him to submit any such statements that may be in his possession. If he provides any new or additional statements from Dr. B., associate them with the claims file. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who evaluated the Veteran in July 2020. The examiner should be asked to review the expanded record, to particularly include the large volume of evidence dated prior to June 2009 that has been added to electronic claims file since the time of the July 2020 examination. After reviewing the expanded record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a kidney disease that had its onset in, or is otherwise attributable to, a period of his active service. In so doing, the examiner should address the Veteran’s contention that his exposure to aircraft fuels in service caused his kidney disease. The examiner should also comment on the significance of the findings in the September 2016 private treatment record indicating that a renal biopsy in 1990 showed the presence of proteinuria and hematuria; the February 1982, September 1987, June 1988, June 1991, and December 1993 STRs related to kidney infection(s) and/or a kidney condition; the August 1982 VA examination and laboratory findings; and the August 2006 private treatment record noting a history of renal insufficiency and a history of gout going back about 10 to 15 years. If the July 2020 VA examiner is no longer employed by VA or it otherwise unable to provide the requested opinion(s), arrange to obtain the requested information from another qualified examiner. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a   supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate 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.