Citation Nr: 22015256 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 97-31 489 DATE: March 16, 2022 ORDER Entitlement to service connection for a kidney disorder, to include as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is weighs against finding that the Veteran's kidney disorder is causally related to active service, to include as due to herbicide exposure therein, and it is not secondarily related to his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a kidney disorder, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 1996, June 2010, November 2010, and September 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded on multiple occasions, to include most recently, pursuant to a December 2020 Board decision. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Therein, the Veteran's claims of entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure and/or secondary to service-connected diabetes mellitus type II; entitlement to service connection for a kidney disorder, to include as due to herbicide exposure; entitlement to a separate rating for bilateral lower extremity radiculopathy associated with service-connected lumbar spine disability, and entitlement to a TDIU due to service-connected disabilities prior to April 14, 2016, were remanded. In a subsequent rating decision, dated October 2021, the Veteran was granted service connection for radiculopathy of the bilateral lower extremities to include diabetic peripheral neuropathy of the femoral nerve, and radiculopathy of the bilateral lower extremities to include diabetic peripheral neuropathy of the sciatic nerve. The decision also assigned an earlier effective date of October 31, 2011 for the grant of entitlement to a TDIU. Accordingly, the above referenced issues are no longer before the Board on appeal and will not be addressed in this decision. Similarly, the Board observes that the agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case, dated October 2021, which addressed the issue of entitlement to service connection for a kidney disorder and entitlement to an evaluation in excess of 40 percent for service-connected lumbar myositis and spondylosis. As to the latter, the Board notes that its previous decision, dated December 2020, denied the Veteran's claim for a higher evaluation for his service-connected lumbar spine condition. As such, the AOJ's consideration of that issue was improper. Therefore, the decision to follow will only address the question of entitlement to service connection for a kidney disorder. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Presumptive Service Connection - Herbicide Exposure Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309 (e) shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). For early-onset peripheral neuropathy, the presumptive service connection is warranted if the disorder manifested to a degree of 10 percent or more within one year after the Veteran's last exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude a veteran from establishing direct service connection with proof of actual direct causation. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for a kidney disorder, to include as due to herbicide exposure The Veteran contends that he is entitled to service connection for kidney disease as causally related to active service, to include as due to herbicide as exposure or as secondarily related to his service-connected disabilities. As discussed in more detail below, the preponderance of the evidence is against his claim. In analyzing the Veteran's claim, the threshold inquiry before the Board is whether he has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the record confirms a post-service diagnosis of chronic kidney disease, the preponderance of the evidence weighs against finding that the Veteran kidney condition is causally related to active service, to include as due to herbicide as exposure or as secondarily related to his service-connected disabilities. According to military personnel records, the Veteran was stationed in the Republic of Vietnam from December 1967 to April 1968, where his official military occupation was listed as a parachute rigger and repairman. Therefore, exposure to herbicides is conceded. Review of service treatment records were silent for any disqualifying abnormalities at enlistment in November 1966. In a corresponding report of medical history, no complaints of kidney conditions or related symptoms were endorsed. Urinary cultures revealed no evidence of growth or bacteria. At separation, there was no evidence of kidney disfunction in January 1971. In the comments section, three instances of treatment for gonorrhea occurred between 1967 and 1968. No residuals or urinary complications were reported following use of prescribed medication, Penicillin. During a urology examination, in April 1972, the Veteran reported dysuria with urethral discharge. The diagnostic impression listed chronic prostatitis. No abnormalities related to impaired kidney functioning were reported. Post-service treatment records confirm a diagnosis of chronic kidney disease. In April 2014, the Veteran underwent a urology consultation. Diagnostic imaging indicated that the kidneys were normal in size without evidence of hydronephrosis. However, small renal cysts were observed in the lower pole, bilaterally. The diagnostic impression noted the appearance of renal cysts. A renal sonogram was conducted in October 2014. Stage-G2-A1 pancytopenia was noted. The condition was deemed likely related to Agent Orange exposure in-service. In separate private physician statement, a current diagnosis of state 2 (mild) chronic kidney disease was indicated. The physician suggested that the condition was likely related to service-related exposure to herbicides. A handwritten treatment record, dated April 2014, listed the Veteran's estimated glomerular filtration rate (eGFR) as 95. In June 2015, a CT scan of the abdomen revealed partial pancreatic fatty replacement and low attenuation lesions at the left kidney, most likely simple cyst. A bladder biopsy, dated September 2015, shows scattered atypical urothelial cells within abundant markedly reactive urothelial cells in both kidneys. A CT of the abdomen and pelvis without contrast, revealed a 4.7 x 4.4 cm low-attenuation lesion arising from the lower pole of the left kidney most likely representing a cyst in March 2016. In January 2018, the Veteran's eGFR was listed as > 60. His urine microalbumin was normal. The previous year, his eGFR was listed as 72. In June 2018, a treatment record listed chronic kidney disease, stage 3 as a current condition. It was described as moderate in severity. Pursuant to a September 2018 Board decision, the Veteran's claim for service connection was remanded. The decision noted that VA and private treatment records demonstrate a diagnosis of kidney cysts. An association between the Veteran's chronic kidney disease and his service-connected diabetes mellitus type II has also been suggested. As such a VA etiological opinion was deemed necessary. On examination in March 2020, the examiner concluded that there was no evidence of a kidney condition. Although the Veteran's private physician diagnosed diabetic chronic kidney disease stage 3 in 2015, the current examination findings do not establish a diagnosis of diabetic chronic kidney disease or chronic kidney disease. Specifically, there was no objective medical evidence to support any diagnosis of a kidney condition in 2020. Therefore, a medical opinion is not required. In an addendum opinion, dated September 2021, the examiner opined that it is less likely as than not (less than 50 percent probability) that the Veteran suffers from a chronic kidney disease as causally related to an in-service injury, event or disease. In support of the stated conclusion, the examiner noted that the Veteran's service treatment records are silent for any evidence of a chronic kidney condition or any related diagnosis during active service or within one year of separation. On or about 2015, the Veteran's private physician diagnosed chronic kidney disease stage 3. Review of the medical literature does not support an etiological link between chronic kidney disease stage 3, and exposure to herbicidal agents which concluded years earlier. Moreover, a VA examination conducted in March 2020 failed to document any objective evidence of a kidney condition. To sustain a diagnosis of diabetic kidney disease it is very important screening for microalbuminuria. Positive results on two of three tests (30 to 300 mg/l) in a six-month period meets the diagnostic criteria for diabetic kidney disease. Upon review of the Veteran's lay assertions, private treatment records, and laboratory testing; the Veteran does not meet the criteria for diabetic kidney disease. Microalbumin, Quanti (3-23 mg/L) levels obtained in February 2017, March 2020, and April 2021 were between 0.5 and 11.8. As of the current examination, the Veteran's creatinine value is 1.29, which meets the criteria for chronic kidney disease - stage 3. While the Veteran's private physician's opinion is acknowledged, the clinical evidence neither supports nor warrants a diagnosis of diabetic chronic kidney disease. For the stated reasons, the examiner opined that the Veteran's chronic kidney disease stage 3 is not secondary to his service-connected diabetes mellitus. Similarly, a review of the medical literature does not support a secondary etiological linkage between chronic kidney disease stage 3, and the Veteran's service-connected lumbar myositis, ischemic heart disease, duodenal ulcer, or erosive gastritis. As noted above, the Veteran's current laboratory finding are substantially similar to those noted in 2015. Therefore, his chronic kidney disease was neither changed nor aggravated by his service-connected conditions from 2015 forward. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to diagnose a kidney condition or opine as to its etiology. To the extent his statements may be credible, the Board ultimately assigns greater probative weight to the medical evidence of record, to include (the absence of clinical findings of a kidney defect, abnormality, or related symptoms either in service or for decades after separation). On review of the record, the Board finds that the evidence fails to show a causal linkage between the Veteran's kidney disease and active service. Specifically, service treatment records are silent for any evidence of kidney dysfunction. Although treatment for other conditions impacting the urinary tract or reproductive system were indicated, no involvement of the kidneys was suggested in service or within one year of separation. Post-service treatment records suggest that the Veteran was diagnosed with a kidney disorder by a private physician or about 2015. While the Board notes the VA opinions of record offered conflicting findings of whether a current diagnosis of a kidney disease is (in fact) warranted, both acknowledged that the alleged onset of symptoms occurred decades after separation. Moreover, the most recent VA opinion considered the possibility of aggravation of the Veteran's alleged kidney disorder as due to his service-connected disabilities. As no significant variation in laboratory findings was found, evidentiary support for a finding of aggravation could not be established. Although the Board recognizes the Veteran's lay assertions regarding a recent history of treatment for chronic kidney disease, with references to a confirmed a diagnosis in private treatment records, there is no evidence to support an etiological linkage to active service, service-related exposures, nor aggravation by his service-connected disabilities. In reaching the above conclusion, the Board has considered the findings of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While there is conflicting evidence regarding the presence of a current disability for VA rating purposes, a disability can still be found if there is evidence of functional impairment resulting from reported symptomatology of such severity as to result in economic impairment. As noted above, there is no evidence that the Veteran experienced a functional impairment due to his alleged kidney disorder. (Continued on the next page) Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for kidney disease as causally related to active service, to include as due to herbicide as exposure or as secondarily related to his service-connected disabilities must be denied. R. KIPPER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.