KIDNEY DISEASE OF

K. A. BANFIELD · 2022 · Case ID: 22061085

MIXED

Summary

The veteran, who served from September 1973 to September 1993, appeals the denial of service connection for a right shoulder disability and a right knee disability, while seeking service connection for medullary sponge kidney disease with kidney cyst. The Board granted service connection for medullary sponge kidney disease, finding that although it was a congenital condition, it preexisted service and was not clearly shown to have avoided aggravation during service. The Board noted the Veteran was presumed sound at entry as the condition was not noted on his entrance examination, and the VA examiner's opinion was inconclusive regarding aggravation. Service connection for the right shoulder was denied because the Veteran failed to report for scheduled VA examinations, and no competent medical evidence linked his current osteoarthritis to service. The Veteran's contention of tendonitis due to overuse from a service-connected left shoulder disability was also unsupported. For the right knee, the Board denied service connection, finding no evidence of a current disability or functional impairment, and no competent medical evidence linking any knee condition to service, despite the Veteran's claims and scheduled examinations that he failed to attend. The Board applied the benefit of the doubt doctrine only to the medullary sponge kidney disease claim, granting it due to the lack of clear evidence against aggravation.

Rationale

Congenital condition not noted at entry examination; Presumption of soundness applies; Lack of clear evidence against aggravation during service

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-48 295

Full Decision Text

Citation Nr: 22061085
Decision Date: 11/01/22 Archive Date: 11/01/22

DOCKET NO. 17-48 295
DATE: November 1, 2022

ORDER

Service connection for medullary sponge kidney disease with kidney cyst is granted.

Service connection for a right shoulder disability is denied.

Service connection for a right knee disability is denied.

FINDINGS OF FACT

1. Medullary sponge kidney disease is a congenital disease that preexisted the Veteran's service but was not noted on his entrance examination.

2. The evidence of record is insufficient to establish that the Veteran's medullary sponge kidney disease was not aggravated beyond normal progression by his service.

3. A right shoulder disability was not shown in service or within one year of the Veteran's discharge from service, and there is no competent evidence that the Veteran's right shoulder arthritis is related to service.

4. A current right knee disability is not shown by the evidence of record and there is no indication the Veteran has right knee symptoms that result in functional impairment of earning capacity.

CONCLUSIONS OF LAW

1. The criteria for service connection for medullary sponge kidney disease with kidney cyst have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306.

2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1973 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In his September 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for September 11, 2019, and the Veteran was notified in a July 25, 2019 letter of the date and time of the hearing. However, the record shows that he did not appear for the hearing or provide an explanation for his failure to appear. The Board accordingly deems the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704.

The claims were remanded in July 2020 for further development.

Service Connection

Service connection may be established 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. 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).

Moreover, where a veteran served continuously for 90 days or more and arthritis and renal disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

1. Service connection for medullary sponge kidney disease with kidney cyst

A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before service and was not aggravated by service. 38 U.S.C
been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

1. Service connection for medullary sponge kidney disease with kidney cyst

A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Congenital and developmental defects are not "diseases or injuries" eligible for service connection. See 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for diseases of congenital, developmental, or familial origin if the disease was incurred or aggravated during service. VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009). While service connection cannot be granted for a congenital or developmental defect, if such a defect is subject to a superimposed disease or injury during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990).

A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). "[T]emporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Here, the Board finds the Veteran's medullary sponge kidney condition is a congenital "disease," rather than a "defect," as it appears to be "capable of improving or deteriorating." See VAOPGCPREC 82-90.

As the Veteran's medullary sponge kidney disease was not noted on the Veteran's entrance examination, he is entitled to a presumption of soundness at entry regarding that condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009) (presumption of soundness applies if a Veteran's congenital disease is not noted at entry). Therefore, the Veteran will be considered to have been sound at entry unless there is clear and unmistakable evidence that the condition both preexisted service and was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Regarding the first prong, uncontroverted medical evidence states that the Veteran's medullary sponge kidney disease is a congenital disorder. See April 2022 VA Opinion. Thus, it preexisted his service.

Regarding the second prong, there is evidence both for and against a finding that the Veteran's medullary sponge kidney disease was aggravated beyond normal progression during his service.

Service treatment records (STRs) show that the Veteran was diagnosed with medullary sponge kidneys in January 1985. Multiple STRs also note kidney stones.

A VA medical opinion was obtained in April 2022. The examiner opined that "[s]ince the kidney disease was not symptomatic prior to 1988, it is as likely as not that something changed during the Veteran's service to cause the onset of symptoms. However, there is insufficient information to determine how much of that change was due to natural
it preexisted his service.

Regarding the second prong, there is evidence both for and against a finding that the Veteran's medullary sponge kidney disease was aggravated beyond normal progression during his service.

Service treatment records (STRs) show that the Veteran was diagnosed with medullary sponge kidneys in January 1985. Multiple STRs also note kidney stones.

Accordingly, the Board finds that a lack of in-service aggravation of the Veteran's preexisting medullary sponge kidney disease has not been clearly and unmistakably shown. Accordingly, the Veteran is presumed to have been sound upon entry to service. His medullary sponge kidney disease was then diagnosed and treated during his service. As the evidence of record shows a current disability that manifested during service, the elements of service connection have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for medullary sponge kidney disease with kidney cyst (current treatment records note a current right kidney cyst) is warranted.

To the extent kidney stones are not encompassed by the medullary sponge kidney disease, there is no evidence showing the current presence of kidney stones. The most recent evidence of kidney stones in post-service treatment records is from December 2007. While a VA kidney examination was scheduled for March 2022, VA records show that the examination was cancelled because the Veteran failed to report for the examination. Consequently, evidence that could have been helpful to the Veteran's claim could not be obtained. In the absence of a current kidney stone disability, service connection for kidney stones as distinct from his medullary sponge kidney disease is not warranted.

2. Service connection for a right shoulder disability

The Veteran contends that his right shoulder arthritis is due to service. He further contends that he has tendonitis of the right shoulder that is due to over-usage as a result of his service-connected left shoulder disability.

STRs document right shoulder complaints beginning in April 1983. At that time the Veteran reported right shoulder pain due to an injury to his right shoulder while playing basketball two years before. A February 1985 examination noted bilateral hypermobile shoulders, "secondary to old recurrent dislocation." A November 1990 record reported recurrent bilateral shoulder problems and noted that the Veteran was able to sublux his right shoulder. On his April 1993 retirement Report of Medical History, the Veteran noted only left shoulder problems. His April 1993 retirement examination noted the upper extremities to be normal apart from left shoulder surgery residuals.

The first evidence of a possible right shoulder condition in post-service treatment records is in VA records from 2016. An April 2016 record notes bilateral shoulder pain and an October 2016 record notes "crepitant knees/shoulders with full [range of motion]." The Veteran was subsequently diagnosed with bilateral glenohumeral joint osteoarthritis and glenohumeral joint instability at a February 2017 VA examination. Accordingly, the first criterion for establishing service connection (a current disability) has been met and the question becomes whether the current disability is related to active service.

The Board's July 2020 remand sought a medical opinion regarding whether there is a relationship between the Veteran's current right shoulder disability and his service. VA records show that examinations were scheduled in March 2022 and April 2022 but subsequently cancelled due to the Veteran's failure to report for the examinations. The Veteran was advised of this in an April 7, 2022 letter and in the June 2022 Supplemental Statement of the Case (SSOC). The record contains no evidence of good cause for missing the examinations and no request from the Veteran to reschedule the examination. Consequently, evidence that could have been helpful to the Veteran's claim could not be obtained.

The Board acknowledges the Veteran's belief that his right shoulder arthritis began during active duty and is due to the physical requirements of active duty. However, he has not shown that he has the specialized training necessary to render a competent medical opinion on this question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Consequently, his contentions cannot constitute competent medical evidence.

In sum, the Veteran failed to report for his scheduled examination and did not provide any competent
reschedule the examination. Consequently, evidence that could have been helpful to the Veteran's claim could not be obtained.

In sum, the Veteran failed to report for his scheduled examination and did not provide any competent medical evidence to support a link between his current right shoulder arthritis and his service. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). In the absence of competent medical evidence linking the Veteran's current right shoulder arthritis to his active service, service connection is not warranted.

As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Service connection for a right knee disability

The Veteran contends that he has right knee arthritis that was caused by his active service.

The initial question for the Board is whether the Veteran has a current right knee disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Upon review of the record in this case, the Board concludes that the Veteran does not have a current diagnosis of a right knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim.

The medical evidence of record does not show a right knee arthritis diagnosis. Post-service treatment records contain only a single knee complaint: "crepitant knees/shoulders with full [range of motion]." See October 2016 VA treatment record. VA records show that examinations were scheduled in March 2022 and April 2022 but subsequently cancelled due to the Veteran's failures to report for the examinations. Consequently, evidence that could have been helpful to the Veteran's claim could not be obtained.

The Board notes that symptoms of pain that result in functional impairment causing decreased earning capacity can constitute a disability even without an identified underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). However, there is also nothing in the record to suggest that the Veteran's right knee crepitance causes functional impairment.

Without evidence of a current right knee disability or of symptoms that result in functional impairment of earning capacity, service connection is not warranted. See id. Furthermore, even if the Veteran's current knee complaints constitute a disability, there is no competent medical evidence that a current knee condition is related to service.

As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Jesteadt, 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.

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