Citation Nr: 22018476 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-39 235 DATE: March 29, 2022 ORDER Entitlement to service connection for a kidney condition, to include acute renal insufficiency, renal cysts, and kidney stones, as secondary to service-connected diabetes mellitus and/or as due to exposure to herbicide agents, is denied. FINDING OF FACT The evidence does not show that that Veteran's kidney stones, benign renal cysts, or acute renal insufficiency were related to active service, to include Agent Orange exposure; or were caused or aggravated by his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for entitlement to service connection for a kidney condition, including acute renal insufficiency, renal cysts, and kidney stones, to include as secondary to service-connected diabetes mellitus and/or as due to exposure to herbicide agents have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the United States Air Force from November 1970 to November 1994 including verified service in the Republic of Vietnam. Theis claim is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) of Decatur, Georgia. This claim was previously before the Board in June 2020 and in September 2021. In September 2021 the Board remanded the claim for an addendum medical opinion. The Board observes that there has been substantial compliance with its remand directive and the claim is appropriate for adjudication. Stegall v. West, 11 Vet. App. 268, (1998). Entitlement to service connection for a kidney condition, including renal insufficiency, renal cysts, and kidney stones, to include as secondary to service-connected diabetes mellitus and/or as due to exposure to herbicide agents In February 2012, VA received the Veteran's claim for service connection for kidney cysts and kidney stones. In May 2014, the Veteran submitted a notice of disagreement (NOD) to the June 2013 rating decision now alleging that his kidney cysts and stones were related to Agent Orange exposure. After review of the most probative evidence of record, the Board finds that service connection for a kidney disability due to Agent Orange exposure or as secondary to diabetes mellitus, type II, to include kidney cysts and kidney stones is not warranted. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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, 1167 (Fed. Cir. 2004). Service connection may also 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). In addition, service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). Here, the Veteran is presumed to have been exposed to herbicides coincident with his documented service in the Republic of Vietnam during the Vietnam Era from June 1969 to June 1970. For veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). While kidney conditions not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the Veteran's service treatment records (STRs), close review reflects no complaints or treatment for kidney stones, abdominal pain, urinary tract issues, or albumin in the urine. Although the STRs do not include separation documents, a periodic examination in January 1992 reflects a normal genitourinary system and in a July 1994 Report of Medical History the Veteran did not endorse the listed option of kidney trouble. Post-service VA and private medical records reflect that the Veteran has been treated for kidney stones proximate in time to the period on appeal. In December 2011, the Veteran underwent ultrasound examination for complaints of back and right-sided abdominal pain. The ultrasound report recommended a CT scan based upon visualization of 3 mm non-obstructing bilateral renal stones and a 1.6 cm left renal cyst. In January 2012, the Veteran underwent a CT scan of the abdomen and pelvis. No stones were identified in the kidneys. A 5 mm cyst was seen in the right kidney and 1.5 mm and 1.8 cm cysts were seen on the left kidney. The impression was bilateral renal cysts, simple. The January 2012 clinic visit note indicates that the kidney stones were consistent with the Veteran's pain the month before. If the pain were to reoccur or a kidney stone be captured, stone analysis, preventive strategies, and repeat CT scan would be considered. In a July 2012 clinic note, the provider noted renal cysts and nephrolithiasis of both kidneys on the problem list without providing further treatment. Accordingly, the Board finds that the "current disability" element of the Veteran's service connection claim has been met. See 38 C.F.R. § 3.303(a). The issue to be resolved is whether his kidney stone or cysts were incurred in or otherwise related to service or to a service-connected disease or injury. In a December 2012 VA kidney conditions examination, the examiner noted that the Veteran was diagnosed with other inherited kidney disorder, renal insufficiency, in 2012. The Veteran gave a history of being seen for pain on his right side, at the level of 8 of 10. He reported that the kidney stone passed through his system. The examiner acknowledged a history of renal dysfunction without any current signs or symptoms of same at the time of the examination. Laboratory studies performed in December 2012 were within normal limits with a BUN at 12 mg/dl, creatinine 1.31 H mg/dl and glomerular filtration rate of 58. There was some evidence of renal dysfunction with a glomerular filtration rate below 60. Urinalysis in December 2012 was normal without hyaline casts, red blood cells or proteinuria. The examiner concluded that the Veteran's kidney condition was not caused by an in-service event and with no current diagnosis for diabetes, the renal condition could not be related to a diabetic condition. The Board remanded the claim in March 2019 for an opinion on direct service connection due to exposure to herbicide agents. In December 2019, a VA kidney conditions examination was conducted in support of the Veteran's claim. The examiner initially noted that there was no confirmed diagnosis in the treatment records for any chronic renal condition and specifically included renal insufficiency. The examiner documented and reviewed these laboratory studies relating to kidney function from May 2012, November 2015 and July 2016 confirming that all were within normal limits. In addition, the December 2019 laboratory studies for blood urea nitrogen (BUN) creatinine, and EGFR were all within normal ranges. The examiner concluded that it was less likely than not that the Veteran's kidney condition, including renal cysts and kidney stones was incurred in or caused by an in-service injury, event, or illness, to include as due to exposure to herbicide agents. As rationale, the examiner determined that these conditions are not included in the itemized list of conditions determined to have a statistically significant association with exposure to herbicides pursuant to the authority and guidance of the Agent Orange Act of 1991. In addition, the examiner noted that it is less likely than not that the Veteran's kidney condition, including renal cysts and kidney stones was incurred, caused, or aggravated by his service-connected diabetes mellitus. As rationale he noted that there is no direct cause-effect relationship has been established in the medical literature between these conditions; in addition, based upon review of medication records, the Veteran did not start antidiabetic medication until 2013 which is subsequent to the observation of kidney cysts and stones in December 2011 and kidney cysts in January 2012. The Board acknowledges that the Veteran served in Vietnam and is thus presumed to have been exposed to herbicide agents. The Veteran, moreover, raised the possibility that his benign neoplasm, or renal cyst, was related to herbicide exposure. Although none of the Veteran's kidney disorders are listed under 38 C.F.R. § 3.309(e) as being among the conditions known to be associated with herbicide exposure, the Veteran may still be service connected upon proof of direct causation, or on any other recognized basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In September 2021, the Board remanded the claim for an addendum medical opinion with a more detailed, complete rationale as to why the Veteran's kidney conditions were not caused by exposure to herbicide agents. In October 2021, the examiner provided an addendum medical opinion noting that the Veteran's STRs were silent for renal insufficiency, kidney cysts or stones. Periodic physical examinations were negative for albumin in the urine which would have been present for a patient with kidney disease. The Veteran's nonobstructing kidney stones shown on ultrasound in December 2011 presented 17 years after his military service. Upon repeat ultrasound in May 2021, there was a simple renal cyst and no evidence of renal stones. There is no documentation that the Veteran had any follow-up treatment for the renal cyst. The examiner explained that renal cysts develop when the surface layer of the kidney weakens and forms a pouch. This pouch then fills with fluid, detaches, and develops into a cyst. The risk of having a simple kidney cyst increases as you get older, though they can occur at any age. Simple kidney cysts are more common in men. Medical literature does not correlate kidney cysts with exposure to Agent Orange. Medical progress notes and most the recent labs showed normal kidney function studies and are silent for diagnosis or treatment for chronic renal insufficiency. and The Veteran has not submitted any new evidence that supports the existence of kidney insufficiency or a kidney disability, and the Veteran has not submitted any additional evidence that supports that his renal cyst is due to exposure to herbicide agents. Therefore, it is less likely than not that the claimed conditions have a direct service connection due to exposure to herbicides. As discussed in detail above, VA afforded the Veteran an examination in October 2021 to consider direct service connection due to herbicide exposure. The Board regrets that the Veteran was placed in harm's way in Vietnam, to include being exposed to herbicide agents. However, his lay statements alone are not sufficient to establish a causal link between such exposure and his kidney conditions that were present during or proximate to the period on appeal or as secondary to his service-connected diabetes mellitus. The etiology of such disorders is a complex medical matter requiring training and experience, which that Veteran has not shown that he not possesses. Specifically, the question of the etiology of renal insufficiency, renal stones or cysts involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship that requires knowledge of the circulatory and endocrine systems and the impact of exposure to hazardous chemicals and/or diabetes may have on these systems. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran's opinion as to the etiology of his renal conditions are afforded no probative weight. Moreover, the Board has ensured that VA medical professionals analyzed the Veteran's specific in-service symptoms in conjunction with his claims; the resulting opinion reflects that examiners' findings that the Veteran's kidney disorders during the period on appeal are not related to his service. For the reasons discussed above, the Board concludes that the evidence for and against service connection weighs against a finding that the Veteran's has a current kidney disorder related to service. Likewise, the weight of the evidence is against a finding that his kidney disorders were caused or aggravated by his service-connected diabetes mellitus, type II. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim of for service connection, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.