Citation Nr: 21026042 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-08 458 DATE: April 29, 2021 ORDER Entitlement to service connection for chronic kidney disease is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The evidence is at least evenly balanced that the Veteran’s chronic kidney disease, to include renal cell carcinoma, is related to his active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for chronic kidney disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1966 to October 1968, including service in Vietnam. In July 2018, the Board of Veterans’ Appeals (Board) remanded this appeal to the agency of original jurisdiction (AOJ) to obtain medical opinions concerning the etiology of the Veteran’s hypertension and kidney disease. The July 2018 remand is incorporated herein by reference. Service Connection – Chronic Kidney Disease 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. Generally, the evidence must show: (1) the existence of a present 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Private medical records show that, as early as 2012, the Veteran was diagnosed with kidney disease. On VA examination in August 2012, the Veteran reported that he had experienced kidney issues for 10 to 15 years, including kidney stones. The examiner listed the Veteran’s diagnosis as chronic kidney disease with evidence of renal dysfunction. The examiner also stated that the Veteran’s kidney disease was likely due to his hypertension. A February 2019 letter from the Veteran’s treating physician includes an opinion that his current cancers, including renal cell carcinoma, were highly probably related to his Agent Orange exposure during service in Vietnam. On VA examination in November 2019, the Veteran’s diagnoses were listed as bilateral kidney stones, cysts, and tumors indicative of renal cell carcinoma. The examiner stated that the Veteran’s kidney disease was not caused by heart disease or diabetes. An October 2020 opinion states that medical evidence was not sufficient to support a determination of a baseline level of severity of the Veteran’s kidney condition. It is less likely than not aggravated by diabetes mellitus (DMII). While there is plentiful medical research showing that diabetes worsens kidney function, there is no substantive study showing diabetes aggravates renal cell carcinoma. However, the examiner offered a positive opinion concerning direct service connection. The examiner found that the Veteran’s kidney cancer was at least as likely as not incurred in, or caused by, the claimed in service injury, event, or illness. The examiner explained that the Veteran’s personnel records reflect his active duty service from October 11, 1966 to October 10, 1968 and his receipt of the Combat Infantry Badge, the Vietnam Service Medal, and the Vietnam Campaign Medal. His DD-214 reflects his Vietnam service for 11 months and 26 days. As such, it is presumed that he was exposed to an herbicide agent, such as Agent Orange. While exposure to Agent Orange has not been shown to be a direct cause of renal cell carcinoma, it has been shown to be a carcinogenic agent in a number of other cancers in humans. Dioxin is carcinogenic and possibly could cause renal cancer. Therefore, it would seem plausible and reasonable to find that Agent Orange exposure certainly could lead to renal cell carcinoma in a select individual. The October 2020 examiner further opined that the Veteran’s kidney condition was related to his hypertension and explained that nephrons in the kidneys are supplied with a dense network of blood vessels and high volumes of blood flow through them. Over time, uncontrolled high blood pressure can cause arteries around the kidneys to narrow, weaken, or harden. These damaged arteries are not able to deliver enough blood to the kidney tissue. This, in turn, leads to kidney disease. Therefore, the Veteran’s chronic kidney disease is at least as likely as not proximately due to his hypertension. Here, the medical opinions conflict as to the etiology of the Veteran’s kidney conditions. Both the February 2019 private treating physician and the October 2020 examiner found that the Veteran’s kidney conditions were related to his active service. Despite the opinions stating that kidney disease is related to his hypertension, overall, the conflicting opinions cannot be reconciled other than in favor of the Veteran due to their relative equipoise. In sum, the evidence is at least evenly balanced as to whether the Veteran’s kidney disease, including renal cell carcinoma, is related to his active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a chronic kidney disorder is warranted. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). REASONS FOR REMAND Service connection for hypertension The Veteran contends that his hypertension is related to his active service. The Board finds there is insufficient evidence upon which to adjudicate this claim and that an additional remand is necessary. On VA examination in August 2012, the Veteran reported that his hypertension began in the 1970s. While the examiner commented that the Veteran’s hypertension was not caused by his more recently diagnosed diabetes mellitus, there was no opinion rendered as to whether the Veteran’s hypertension was related to his active service. On VA examination in November 2019, the Veteran reported that his hypertension has been monitored and treated since 1975. In a separate opinion, the examiner simply stated that hypertension has not been demonstrated to be due to Agent Orange exposure. While the opinion of record addresses the lack of a presumption of a nexus between the Veteran’s hypertension and his active service in Vietnam, the opinion fails to address any other theory of service connection, or to explain why the Veteran’s hypertension is related to factors unrelated to his service. Regretfully, the Board must again remand this matter for an additional, well-reasoned medical opinion concerning the Veteran’s diagnosed hypertension. Accordingly, this matter is REMANDED for the following action: 1. Obtain any available outstanding medical records pertaining to this Veteran. In doing so, obtain any necessary release from the Veteran for the purpose of obtaining pertinent private records. Attempts to obtain medical records should be documented in the claims file. 2. Forward the Veteran’s claims file to a qualified examiner for a clarifying medical opinion regarding the etiology of his hypertension. Upon review of the record, the examiner is asked to: (a.) Address the Veteran’s assertion that his hypertension began in the 1970’s and reconcile this with his active service medical records. (b.) Render an opinion regarding the etiology of the Veteran’s hypertension, with adequate rationale, including whether his hypertension is as likely as not (50% probability or greater) incurred in, or is otherwise related to, his active service. All opinions provided must be accompanied by adequate rationale. The examiner is reminded that the Veteran is competent to report his observations, including symptoms, treatment, and injuries, and that his reports must be taken into account and addressed in formulating the requested opinion. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.