KIDNEY DISEASE OF

Summary

The Veteran, an Army Veteran who served from January 1969 to January 1971 and again from August 1981 to April 1999, appeals the denial of service connection for hemodynamic renal dysfunction, claimed as diabetic nephropathy, diabetic renal dysfunction, and stag, to include as secondary to service-connected diabetes and hypertension. The Veteran has a current diagnosis of hemodynamic renal dysfunction, confirmed by VA treatment records and a July 2018 VA examination. However, service treatment records did not mention this diagnosis, and the Board found no in-service incurrence or aggravation, thus denying direct service connection. The Board also noted that while the Veteran had herbicide exposure, hemodynamic renal dysfunction is not a presumptive condition under the herbicide agent regulations. The claim was granted on a secondary basis. The Veteran has service-connected diabetes mellitus type II and hypertension. A private medical opinion from April 2022 stated the Veteran's chronic kidney disease (CKD) Class 3b was most likely secondary to diabetic nephropathy, also noting long-standing hypertension and NSAID use as potential contributors. The Board applied the benefit of the doubt doctrine, finding the evidence in relative equipoise regarding whether diabetes and hypertension, versus NSAID use, caused the renal dysfunction. Consequently, service connection for hemodynamic renal dysfunction secondary to diabetes and hypertension was granted.

Rationale

Current diagnosis confirmed by VA treatment records and VA examination.; No in-service incurrence or aggravation found for direct SC.; Granted secondary to diabetes and hypertension due to relative equipoise and private medical opinion.

Full Decision Text

Citation Nr: 23056029
Decision Date: 10/13/23	Archive Date: 10/13/23

DOCKET NO. 20-20 203
DATE: October 13, 2023

ORDER

Entitlement to service connection for hemodynamic renal dysfunction (claimed as diabetic nephropathy, diabetic renal dysfunction, and stag), to include as secondary to service-connected diabetes and hypertension, is granted.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his hemodynamic renal dysfunction is at least as likely as not related to service-connected diabetes and hypertension.

CONCLUSION OF LAW

The criteria for service connection for hemodynamic renal dysfunction as secondary to service-connected diabetes and hypertension are 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 on active duty in the United States Army from January 1969 until his honorable discharge in January 1971, and from August 1981 until his honorable discharge in April 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of the Regional Office of the Department of Veterans Affairs (VA).

Service Connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

1. Entitlement to service connection for hemodynamic renal dysfunction (claimed as diabetic nephropathy, diabetic renal dysfunction, and stag), to include as secondary to service-connected diabetes and hypertension.

The Veteran has a current diagnosis of hemodynamic renal dysfunction as of February 2018 and noted in the July 2018 VA examination. This diagnosis is confirmed by the VA treatment records. As such, the Veteran has met the first element of service connection. 

The Veteran was discharged from active service in 1999 and was diagnosed with hemodynamic renal dysfunction in 2018. See July 2018 VA Examination. The VA treatment records show that he had kidney disease in 2016. The Veteran's service treatment records do not refer to a hemodynamic renal dysfunction diagnosis. The Board finds that the Veteran did not have an in-service incurrence or aggravation of his hemodynamic renal dysfunction diagnosis. As a result, he has not met the second element of service connection and cannot be awarded direct service connection. 

Although the Veteran was exposed to herbicide agents during service, hemodynamic renal dysfunction, or kidney disease in general, is not a disease listed under the herbicide agent presumption, so that presumption is not applicable to this claim. See 38 C.F.R. § 3.309(e).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v.
icide agent presumption, so that presumption is not applicable to this claim. See 38 C.F.R. § 3.309(e).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995).

As stated above, the Veteran has a current disability. The Veteran has also been awarded service connection for diabetes mellitus, type ii, and hypertension.  As such he has met the first two elements of secondary service connection. The Veteran submitted a private medical opinion in April 2022. The provider stated that the Veteran "has CKD Class 3b most likely secondary to Diabetic Nephropathy." The provider also stated, "He does have history of long standing hypertension as well as previous use of NSAID which could have contributed to some degree of kidney dysfunction as well." See April 2022 Private Opinion. 

The Board notes that 38 C.F.R. § 3.310(b) has recently been addressed by the Court in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating 3.310(b) for the use of the phrase "proximately due to" in the context of aggravation). Specifically, in Spicer, the Court held that 38 U.S.C. § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way, §1110 provides for compensation for a worsening of functionality-whether through an inability to treat or a more direct, etiological cause. Nothing in the statute limits §1110 to onset or etiological causes of a worsening in functionality. Thus, the Court in Spicer found the phrase "proximately due to" under 3.310(b) inconsistent with §1110 and, therefore "unlawful," consequently, for "aggravation of non-service-connected disabilities" it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. Id.

Additionally, a discussion of the benefit of the doubt doctrine is required. The doctrine states, in part, as follows: "... When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the?benefit of the doubt?to the claimant." 38 U.C.S. § 5107(b). "[I]n the veterans benefits system the benefit of the doubt as to any issue material to resolution of the claim goes to the veteran if the evidence is in equipoise[.]" Jones v. Shinseki, 23?Vet. App.?382, 388 n.1 (2010). 

The Federal Circuit Court of Appeals (Federal Circuit) has "found?§ 5107(b) to be 'clear and unambiguous on its face' and recited dictionary definitions of the words 'approximate' and 'balance' in concluding that under the statute 'evidence is in approximate balance when the evidence in favor of and opposing the veteran's claim is found to be almost exactly or nearly equal.'" See Ortiz v. Principi, 274 F.3d 1361, 1364.?The Federal Circuit has also found that "the?benefit-of-the-doubt?rule may be triggered in situations other than?equipoise?of the evidence-specifically, situations where the evidence is 'nearly equal,'?i.e., an 'approximate balance' of the positive and negative evidence as set forth in § 5107(b) and 38?C.F.R. §?3.102." See Lynch v. McDonough, 21 F.4th 776, 780 (Citations omitted).

The Board finds that the evidence is in relative equipoise as to whether the Veteran's diabetes and hypertension were a cause of his hemodynamic renal dysfunction, as opposed to his use of NSAIDs. As a result, his claim for entitlement to service connection for hemodynamic renal dysfunction, secondary to diabetes and hypertension, is granted.   


?equipoise?of the evidence-specifically, situations where the evidence is 'nearly equal,'?i.e., an 'approximate balance' of the positive and negative evidence as set forth in § 5107(b) and 38?C.F.R. §?3.102." See Lynch v. McDonough, 21 F.4th 776, 780 (Citations omitted).

The Board finds that the evidence is in relative equipoise as to whether the Veteran's diabetes and hypertension were a cause of his hemodynamic renal dysfunction, as opposed to his use of NSAIDs. As a result, his claim for entitlement to service connection for hemodynamic renal dysfunction, secondary to diabetes and hypertension, is granted.   

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. A. Johnston, 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.