Citation Nr: 21029458 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-41 770 DATE: May 13, 2021 ORDER Entitlement to service connection for chronic kidney disease, to include as secondary to diabetes mellitus, for the purpose of accrued benefits, is granted. REMANDED Entitlement to service connection for renal cell carcinoma is remanded. FINDING OF FACT The Veteran's chronic kidney disease was proximately due to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for chronic kidney disease, to include as secondary to diabetes mellitus, for the purpose of accrued benefits, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from August 1963 to July 1966. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, during the pendency of this appeal, the Veteran passed away in February 2019. In May 2019, the Veteran's surviving spouse (Appellant) was approved as a substitute claimant for her late husband's claim that remained pending at the time of his death. The Board notes that the Appellant provided testimony before the undersigned Veterans Law Judge (VLJ) at a March 2021 board hearing. A copy of the transcript has been associated with the claims file. Originally, this present appeal came before the Board as a service connection claim for kidney removal (claimed as loss of kidney). Upon thorough review of the record, the Board notes that the Veteran's claim for loss of kidney reasonably encompassed two distinct claims: (1) a claim for service connection for chronic kidney disease and (2) a claim for service connection for renal cell carcinoma. As such, the Board has recharacterized the issues as stated and will proceed with adjudication. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for chronic kidney disease, to include as secondary to diabetes mellitus, is granted. The Appellant contends that the Veteran's kidney loss was secondary to diabetes mellitus. See April 2014 Fully Developed Claim. Additionally, in the November 2015 VA Form 9, the Veteran asserted that he believed that his kidney condition is related to his exposure to herbicide agents in Vietnam. In addition, the Veteran stated that he was being treated for diabetes mellitus, which is known to have relations to kidney problems. At the outset, the Board notes that the agency of original jurisdiction (AOJ) conceded in-service herbicide exposure when it granted service connection for diabetes mellitus in a January 2008 rating decision. Additionally, the evidence clearly shows that the Veteran has been diagnosed with chronic kidney disease. See January 2019 VA exam. Since the first prong (a current disability) and second prong (a service-connected disability) has been met, the question before the Board is whether the evidence establishes a nexus between the two disabilities. In January 2019, the Veteran was afforded a VA examination. The examiner noted that the Veteran was currently diagnosed with chronic kidney disease with superimposed diabetic nephropathy. Further, the examiner opined that the claimed condition is at least as likely as not (50 percent or greater) due to or the result of the Veteran's service-connected diabetes mellitus. The examiner's rationale included review of the Veteran's relevant medical history. First, the examiner noted the onset of the Veteran's diabetes mellitus in 2002, followed by a diagnosis of chronic kidney disease in 2013, and then the Veteran's nephrectomy in 2014. The examiner further noted that the Veteran's chronic kidney disease was diagnosed as being from his hypertension and uninephric state. However, since his nephrectomy, "kidney function has declined, with microalbuminuria, indicative of diabetic nephropathy." Further, "his kidney function decline is a result of his diabetes mellitus, type II." The examiner concluded that the current severity of the Veteran's chronic kidney disease is more likely than not secondary to the Veteran's diabetes mellitus. The examiner based his opinion on the fact that the Veteran's chronic kidney disease began after the Veteran's diabetes mellitus. Additionally, the examiner stated that medical literature supports this association between chronic kidney disease and diabetes mellitus. In March 2021, the Appellant submitted a positive nexus opinion by Dr. Q. The short correspondence states, "To whom it may concern, this is to indicate that [the Veteran], had chronic kidney disease secondary to diabetes, hypertension, with history of right nephrectomy." The Board finds the January 2019 opinion highly probative. The January 2019 opinion was thoroughly articulated, based on a thorough review of the Veteran's medical history, and supported by medical literature. Further, the Board affords the March 2021 opinion from Dr. Q. some probative weight. Although Dr. Q's opinion was brief, Dr. Q's opinion cannot be ignored because she was the private nephrologist that took care of the Veteran for several years after his nephrectomy. See March 2021 Hearing Transcript. In reviewing the opinions, the Board finds that the evidence in record supports a positive finding of nexus between the Veteran's chronic kidney disease as secondary to his service-connected diabetes mellitus. Accordingly, the Board finds that service connection for chronic kidney disease on a secondary theory of entitlement warranted and the claim is granted. REASONS FOR REMAND Entitlement to service connection for renal cell carcinoma is remanded. The Appellant contends that the Veteran's renal cell carcinoma was secondary to his service-connected diabetes mellitus and chronic kidney disease. See March 2021 Hearing Transcript. Additionally, in the November 2015 VA Form 9, the Veteran asserted that he believed that his kidney condition is related to his exposure to herbicide agents in Vietnam. In August 2014, the Veteran was afforded a VA examination. The examiner opined that the Veteran's renal cell carcinoma is less likely than not (less than 50 percent) proximately due to or the result of the Veteran's service-connected diabetes mellitus. For rationale, the examiner states that the claims file, and medical literature does not support that diabetes mellitus causes or significantly contributes to the cause of renal cell carcinoma. Further, the examiner cited a list of risk factors by the Mayo Clinic. In January 2019, the Veteran was afforded another VA examination. The examiner provided a one sentence opinion stating that the Veteran's renal cell carcinoma (neoplasm of the kidney) is unrelated to his diabetes mellitus. Upon review of the record, the Board finds the August 2014 negative opinion to be inadequate. The examiner concluded that the literature does not support a connection between diabetes mellitus causing or significantly contribute to renal cell carcinoma, however the examiner does not indicate how the literature or cited risk factors specifically apply to the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the Board notes that any level of aggravation by the service-connected disability is sufficient to satisfy nexus. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Additionally, the Board finds the January 2019 opinion inadequate for adjudication. This brief opinion failed to contain a substantive medical rationale to support the examiner's conclusion. See Nieves-Rodriguez, 22 Vet. App. at 301. Further, the examiner failed to address whether the Veteran's renal cell carcinoma was caused by the Veteran's conceded herbicide exposure in Vietnam. The examiner also failed to address whether the Veteran's diabetes mellitus or chronic kidney disease caused or aggravated the Veteran's renal cell carcinoma. In a statement during a March 2021 hearing, the Appellant identified relevant outstanding private treatment records. The treating private nephrologist for the Veteran resides at Gulf Coast Nephrology Associates; however these private treatment records are not in the Veteran's claims file. The Boards finds a remand is necessary to allow VA to obtain outstanding private treatment records from Gulf Coast Nephrology Associates. Additionaly, a new medical opinion is warranted to address the possible nexus between the Veteran's renal cell carcinoma and his now service-connected disabilities, as well as determining whether there is a link between in-service herbicide exposure and the Veteran's renal cell carcinoma. The matters are REMANDED for the following action: 1. Ask the Appellant to complete a VA Form 21-4142 for Dr. Q. at Gulf Coast Nephrology Associates, if necessary. Ensure that two requests have been made or are made for the authorized records from D. Q. unless it is clear after the first request that a second request would be futile. If the records for treatment from Dr. Q. cannot be obtained, notify the Appellant of the inability to obtain those records. When completing the foregoing, ensure that requirements of 38 C.F.R. §§ 3.159(c)(1) and (e) are met. 2. After completion of the above development, obtain an addendum opinion from the examiner that completed the January 2019 VA examination, or if unavailable, another appropriate clinician. Following a complete review of the electronics claims file, including a copy of this remand, the VA examiner is requested to opine as to the following: a. Whether it is at least likely as not (probability of 50 percent or greater) that the Veteran's renal cell carcinoma was caused by conceded in-service herbicide exposure. b. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's renal cell carcinoma was proximately caused by his service-connected diabetes mellitus. c. Whether it is as likely as not (probability of 50 percent or greater) that the Veteran's renal cell carcinoma was aggravated (worsened beyond the natural progression) by his service-connected diabetes mellitus. d. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's renal cell carcinoma was proximately caused by his service-connected chronic kidney disease. e. Whether it is as likely as not (probability of 50 percent or greater) that the Veteran's renal cell carcinoma was aggravated (worsened beyond the natural progression) by his service-connected chronic kidney disease. (Continued on the next page) The examiner must provide a complete and fully articulated explanatory rationale for any opinion expressed that is based on the examiner's clinical experience and medical expertise; established medical principles; and the medical evidence in the electronic claims file. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Law Clerk for the Board N. Jamordee 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.