Citation Nr: 22014006 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-15 151 DATE: March 11, 2022 ORDER Entitlement to service connection for nephrosclerosis is denied. FINDING OF FACT The Veteran does not currently have nephrosclerosis; moreover, he did not have nephrosclerosis at any time during or approximate to the pendency of his claim. CONCLUSION OF LAW The criteria for service connection for nephrosclerosis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In February 2019 and September 2020, the Board, inter alia, remanded the Veteran's claims for service connection for hypertension and nephrosclerosis to the agency of original jurisdiction (AOJ) for further development. Most recently, in October 2021, the claims were remanded by the Board to the AOJ for further development. After accomplishing the above, the AOJ granted service connection for hypertension (as reflected in a December 2021 rating decision) and continued to deny the Veteran's service connection claim for nephrosclerosis (as reflected in a December 2021 supplemental statement of the case (SSOC)). As the award of service connection for hypertension represents a full grant of the benefit sought on appeal, this issue will not be considered herein. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Entitlement to service connection for nephrosclerosis The Veteran contended that his nephrosclerosis was caused or aggravated by his now service-connected hypertension. See October 2018 Board hearing transcript, p. 15. The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). As a threshold issue, a current disability must be established for nephrosclerosis. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C. § 1110 and 38 U.S.C. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the October 2021 remand, the Board noted that the prior VA medical opinions of record were not adequate, and remanded for new VA medical opinion. Pursuant to the Board's remand directives, VA medical opinion was obtained in December 2021. The examiner opined that it was less likely than not that the claimed nephrosclerosis was caused or aggravated by his service-connected hypertension. As rationale, she stated that upon "extensive review of the [V]eteran's STRs and VA treatment records, no objective evidence is found to support renal dysfunction or nephrosclerosis." The examiner also commented that serial lab work and urinalyses were extensively reviewed, "but there is no indication of renal dysfunction, either historical or current, based on the results of these diagnostic tests." The examiner also stated that she disagreed with a prior December 2019 VA examination notating a diagnosis for nephrosclerosis as "[t]here is not objective medical evidence to support a diagnosis of nephrosclerosis." In this case, the Board finds that current nephrosclerosis is not shown at any time during the appeals period. The Board notes that a current disability encompasses any diagnosis given proximately to filing the claim and any diagnosis that appears during the claims period even if it later resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013) (to the effect that where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate, or the previously diagnosed condition had gone into remission). In this case, however, the question of whether the Veteran has current nephrosclerosis, or a related disorder is a complex medical question. It relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). On the other hand, the December 2021 examiner provided a medical opinion concluding that after extensive review of the medical evidence, there is no evidence of current nephrosclerosis. The Veteran's speculative report of nephrosclerosis is not competent to establish the existence of current nephrosclerosis or a related disorder in this particular case. In this case, the medical evidence is against a finding of current nephrosclerosis at any time during the appeals period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for nephrosclerosis must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.