Citation Nr: 21025712 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-33 769 DATE: April 28, 2021 ORDER Entitlement to service connection for a chronic renal disability, to include Gitelman’s syndrome, is denied. New and material evidence having not been received, the petition to reopen a previously denied claim of entitlement to service connection for hypokalemia (low potassium) is denied. FINDINGS OF FACT 1. The most probative (competent and credible) evidence is against finding that the Veteran has a chronic renal disability, including especially Gitelman’s syndrome, because of his military service. 2. Additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is cumulative or redundant of the evidence of record at the time of the last final and binding denial and does not raise a reasonable possibility of substantiating the claim for service connection for hypokalemia.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a chronic renal disability, including Gitelman’s syndrome. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Evidence received since the last final and binding denial of the claim of entitlement to service connection for hyperkalemia is not new and material; consequently, the criteria are not met to reopen this claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1968 to August 1972. He also had Reserve service and active service in the National Guard from October 1980 to October 1984 and from August 1999 to December 2002. These claims were previously before the Board in November 2018 but were remanded back to the local Regional Office (RO) for further development and consideration – including especially obtaining any outstanding treatment records potentially pertinent to these claims and for needed medical comment. There since has been the required compliance with those remand directives, certainly the acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active military, naval, or air service includes: (1) active duty (AD); (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty; or (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury (though not also disease) incurred or aggravated in the line of duty. 38 U.S.C. § 101(24)(A)(C). Regarding the latter two types of service, for members of the National Guard of any state, this encompasses duty in drills, field exercises, arms competitions, or military schools when required by federal law. 38 U.S.C.A. § 101(20), (22)(C), 23(C). Only disabilities during certain periods of the Veteran's service in the National Guard would be eligible for service connection. A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. (see Allen v. Nicholson, 21 Vet. App. 54 (2007), see also Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C).   1. Entitlement to service connection for a chronic renal condition, to include Gitelman's syndrome, is denied. The Veteran’s service treatment records (STRs), including his Reports of Medical History and Reports of Medical Examinations, are unremarkable for complaints, diagnosis, or treatment of a chronic renal condition or for indication of Gitelman’ s syndrome (see, e.g., reports dated in April 1972, October 1980, October 1984, October 1988, October 1992, October 1996, June 1997, and May 2002). He contends that he had penile discharge (diagnosed as gonorrhea) in service and perhaps that was indication of this disability now being claimed. While it is true that he had gonorrhea in service, in August 1972, for which he was treated, there is no competent indication that is in any way related to the disability now being claimed, regardless of how it is characterized. Moreover, he does not have the experience, training, or education necessary to give a probative opinion regarding the origins of his now claimed disability, including especially in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Veteran separated from his last period of active service (in the National Guard) in December 2002. A post-service July 2003 VA record reflects that he complained of nocturia and urinary frequency. June and September 2004 VA records show he had low potassium level. A September 2005 record indicates that, “for the past couple of weeks he has been experiencing increased nocturia” and that he “may have Gitelman’s syndrome,” And a November 2005 record surmises “possible Gitelman’s syndrome” due to symptoms/laboratory findings of hypokalemia (low blood potassium level), metabolic alkalosis (elevation of alkaline), hyperreninemia (high concentration of renin in the blood), and nocturia”.   A January 2006 record confirms the diagnosis of Gitelman’s syndrome. The Veteran was observed to have hypomagnesemia, hypokalemia, and nocturia. He reported marked nocturia, that he is constantly thirsty, and that he consequently even wakes up in the middle of the night to drink water. A January 2007 record notes that he has hypokalemia consistent with Gitelman’s syndrome, also that he has benign prostate hypertrophy (BPH). A January 2010 record cites urinary frequency and nocturia secondary to Gitelman’s syndrome. A July 2015 private record (Dr. S.M.) explains the Veteran has nocturia due to BPH. The Veteran’s STRs, however, are grossly unremarkable for suggestion of frequent urination or thirst, and, while in service, he conversely denied frequent urination, including notably in his Report of Medical History in May 2002. Thus, regardless of whether the urinary symptoms mentioned are due to BPH or Gitelman’s syndrome, he did not have them in service. Of equal or even greater significance, however, the Board remanded this claim in November 2018 to obtain a medical opinion needed to assist in deciding this claim, particularly insofar as giving the needed indication of whether the Veteran’s disability now being claimed originated during his service or is otherwise related or attributable to his service. See 38 C.F.R. § 3.303(d). The December 2019 Disability Benefits Questionnaire (DBQ) completed on remand indicates it is less likely than not the Veteran has a renal disability, including Gitelman’s syndrome, because of his service. In deciding the appeal of this claim, the Board has considered not only that medical opinion obtained on remand but also that the Veteran had service during a period of war. However, his military personnel records do not reflect service in Southwest Asia so as to, in turn, warrant consideration of his claim under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. But, even assuming for the sake of argument that he had service in Southwest Asia, the evidence is against finding that he has an undiagnosed illness or a medically unexplained chronic multi-symptom illness, and his diagnosed condition has been clinically found to be unrelated to service in Southwest Asia (see December 2019 DBQ). Moreover, the Board also has considered the Veteran’s 2006 statement entitled “My Present Medical Status”, in which he related that his low potassium had started in the early part of 2005, which, even if true, would still be more than two years after his separation from service. The lapse of time between separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding whether the disability was incurred in service or is attributable to the Veteran’s service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the clinical records are more probative as to the onset date; they note low potassium in 2004, so a bit closer to his service. Still, however, these records do not tend to show low potassium in service, and neither Gitelman’s disease nor low potassium is a disease warranting presumptive service connection under 38 C.F.R. § 3.309(a). Still further, while the Veteran explains that he urinates frequently, both during the day and night, he did not assert that this issue began during his time in service. And, equally, there is no probative evidence of continuity of symptoms since his service attributable to these conditions being claimed, meaning from the time of his service to initial diagnosis. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303 (b). Gitelman’s syndrome is an inherited condition (see December 2019 DBQ). Congenital or developmental "defects" automatically rebut the presumption of soundness and, therefore, are considered to necessarily have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such "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; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). However, VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested during or was aggravated by service). See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. 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); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry, 340 F.3d at 1385-86 (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"). Notably, however, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. If it is determined that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted his service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA's Office of General Counsel also has confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases that either first manifest themselves during service or that preexisted service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990).   In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. But, here, whether the Veteran’s Gitelman’s syndrome is considered a disease or instead a defect ultimately is not dispositive because the evidence does not indicate this condition first manifested during his service or progressed at an abnormally high rate during his service. He also has not been shown to have a superimposed disability as likely as not related to his service. The only probative medical opinion addressing the determinative issue of causation is the December 2019 DBQ obtained on remand. There is no probative opinion with adequate rationale and based on review of pertinent clinical records contrarily suggesting the Veteran has a renal disability that is as likely as not attributable to his service or that onset during his service or was aggravated by his service. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). New and Material Evidence 2. Whether new and material evidence has been received to reopen the claim for service connection for hypokalemia (low potassium). This claim previously was considered and denied in an April 2007 RO decision that was not appealed, so is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In that prior decision, the RO considered the STRs as well as VA clinical records. The RO’s decision to deny the claim explains there was no indication the Veteran’s low potassium was owing to his military service. A claim that has been previously considered, denied, and not appealed – therefore, has a final and binding determination concerning it, will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). A June 2010 Report of General Information, VA Form 21-0820, expresses the Veteran’s desire to reopen this claim. Added to the record since the last final and binding denial of this claim are clinical records affirming he has low potassium and Gitelman’s syndrome. But, as already discussed, these findings were already in evidence at the time of the last final and binding denial of this claim. The additional clinical records essentially repeat the prior findings without providing any indication the Veteran has disability that may have been caused or aggravated by his service. Thus, even considering the “low” threshold espoused in Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010), there is not the required new and material evidence to reopen this claim. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.