Citation Nr: 21027834 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-23 948 DATE: May 6, 2021 ORDER Entitlement to service connection for adult polycystic kidney disease [APKD] is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's adult polycystic kidney disease [AKPD] had its onset during the Veteran's active service. 2. The weight of the evidence supports a finding that the Veteran's hypertension is the result of her service-connected AKDP. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for adult polycystic kidney disease [APKD] have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypertension, to include as proximately due to adult polycystic kidney disease [APKD], have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1973 to March 1977, and from January 1983 to October 1983. These matters originate from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied entitlement to service connection for adult polycystic kidney disease (AKPD) and hypertension. In January 2018 the Board determined that the Veteran had timely initiated an appeal in July 2010. The Veteran's appeal was perfected by Form 9 in June 2014. These matters were previously before the Board in January 2018, September 2019, April 2020, and August 2020. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, the Board finds that there has not been substantial compliance with its August 2020 remand directives. However, as the Veteran's claims are being granted in full, the Board determines that there is no prejudice in adjudicating the Veteran's claims. Service Connection 1. Entitlement to service connection for adult polycystic kidney disease [APKD] and hypertension are granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing 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 present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Correspondence to the Veteran dated July 2009, and a memorandum to the file dated September 2009, reflect the RO's formal finding that the Veteran's complete Service Treatment Records (STRs) could not be located and thus are not part of the evidence of record. In this regard, the Board notes that when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In July 2014 the Veteran submitted a letter from a VA treating provider stating that she had a diagnosis of AKPD; that AKPD is a congenital disease; that the Veteran's AKPD had its onset during a period of active service (1973 to 1977), but was underdiagnosed; and that the Veteran's AKPD caused her hypertension. Generally, the probative value of a medical opinion is dependent on the strength of the rationale offered to support it; in April 2020 the Board discussed the limitations of the probative value of the July 2014 letter. However, the Board must consider all medical evidence of record, in light of the applicable equipoise standard which, as discussed above, is heightened by the unavailability of the Veteran's STRs. The July 2014 letter identifies the Veteran's date of birth as March 1952. An April 2008 VA treatment note reflects the Veteran's report to treating providers that she was diagnosed with AKDP at age 30; the Veteran would have been age 30 during her period of service that began January 1983. The Board notes that statements made for the purpose of medical diagnosis or treatment are exceptionally credible because the declarant has a strong motive to tell the truth in order to receive proper medical care. See White v. Illinois, 502 U.S. 346, 356 (1992). The Board finds that this is not inconsistent with the July 2014 VA treating provider's statement that the Veteran's AKPD manifested during the 1973 to 1977 period, but was underdiagnosed. In July 2010 the Veteran submitted a letter from a private medical provider located in Germany. This provider stated that the Veteran first presented to his practice in October 1986 and, at that time, she was already suffering from AKPD and hypertension. VA obtained a medical opinion in May 2018; in September 2019 the Board discussed the inadequacies of this opinion. Subsequently, VA obtained a series of medical opinions and addenda from a VA examiner, Dr. P.: an October 2019 opinion; a May 2020 opinion; and a subsequent May 2020 addenda purporting to supersede the earlier May 2020 opinion. The Board discussed the inadequacies of the October 2019 and May 2020 opinions in April 2020 and August 2020, respectively. In short, while the examiner has consistently maintained that it is less likely than not that the Veteran's AKPD had its onset during a period of active service, such examiner has continually failed to provide a consistent rationale that addresses or reconciles conflicting evidence. In August 2020 the Board again remanded the Veteran's AKPD and hypertension claims for new addendum opinions. In pertinent part, the Board directed that the opining professional address the German private treating provider note reflecting that the Veteran presented with AKPD as early as October 1986. An addendum opinion was obtained in September 2020. The opinion noted that other private treatment records from Germany, associated with the claims file in February 2009, reflect that the Veteran first presented with initial clinical manifestations in 2002. The VA examiner stated that the note reflecting an October 1986 presentation with AKPD was a "translation error." The Board finds that the September 2020 addendum is, again, inadequate. While the examiner states, in his September 2020 opinion, that the Veteran presented with "initial clinical manifestations" of AKPD in 2002, a translated German private treatment record associated with the claims file in January 2010 reflects that the Veteran had been diagnosed with bilateral kidney cysts since at least August 1994. Further, the Board notes that the probative value of a medical opinion is derived from the medical rationale, or lack thereof, contained therein. Matters of translation are not within the scope of expertise for which VA examiners are consulted, and an examiner's independent conclusion concerning translation may not serve as the basis for a VA medical opinion. In light of the foregoing, and with due consideration to VA's heightened duty to assist and the benefit-of-the-doubt rule, the Board finds that the evidence is at least in equipoise as to whether the Veteran's AKPD had its initial manifestation during active service. Resolving the approximate balance of positive and negative evidence in favor of the Veteran, the Board concludes that the criteria for service connection for AKPD have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. In reaching the above conclusion, the Board acknowledges the congenital nature of APKD. In this regard, 38 U.S.C. § 1111 provides, on claims of service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. 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 (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"). However, 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 service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-97. Once the presumption of attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated by such service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App. at 515. Thus, service connection is not here precluded on the facts of the instant case even though the disease is congenital in nature. The Board further finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is the result of her service-connected AKPD. Accordingly, the Board concludes that the criteria for service connection for hypertension are met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.