KIDNEY DISEASE OF

TIFFANY DAWSON · 2026 · Case ID: A26039050

MIXED

Summary

The veteran, who served from September 1969 to February 1972, appeals the denial of service connection for end-stage renal disease (ESRD), claiming it is due to herbicide agent exposure. The Board acknowledges the veteran's current ESRD diagnosis and conceded in-service herbicide exposure, but notes ESRD is not a presumptive condition under herbicide exposure statutes. The veteran's service treatment records and separation examination were normal regarding kidney health. Private treatment records from July and September 2025 indicate acute renal failure and chronic kidney disease stage IV, likely secondary to hypertension. A November 2025 VA examination diagnosed ESRD, noting onset in July 2025 with no prior history. The VA examiner opined ESRD was less likely than not caused by herbicide exposure, attributing it to hypertension and lack of supporting evidence. The Board found the evidence weighed against a service connection for ESRD due to herbicide exposure, as it did not manifest during service or show continuity of symptomatology. The Board denied service connection for ESRD. The case also involves a remand for skin cancer of the right ear, where the Board found a duty to assist error in failing to obtain private dermatology treatment records from "Wateredge Derm." The Board noted that basal cell carcinoma is not presumptively associated with herbicide exposure, and no other TERA was identified. The Board also clarified that a VA examination for this skin cancer is not mandated under the PACT Act due to the lack of positive association with herbicide exposure.

Rationale

No in-service symptoms or diagnoses related to kidneys.; Separation exam showed normal genitourinary system.; VA examiner opined ESRD less likely than not caused by herbicide exposure.; ESRD not presumptively associated with herbicide exposure.; No evidence demonstrated ESRD related to service or herbicide exposure.; ESRD did not begin in service and continue since service.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

260121-628141

Full Decision Text

Citation Nr: A26039050
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 260121-628141
DATE: April 27, 2026

ORDER

Entitlement to service connection for end stage renal disease (ESRD), to include as due to herbicide agent exposure, is denied.

REMANDED

Entitlement to service connection for skin cancer of the right ear is remanded.

FINDING OF FACT

The evidence persuasively weighs against finding that the Veteran's kidney disability began during active duty service, within a year of separation from actife duty service, or is otherwise etiologically related to his active duty service, including exposure to herbicide agents.

CONCLUSION OF LAW

The criteria for entitlement to service connection for ESRD, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1969 to February 1972.

The rating decision on appeal was issued in November 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the January 21, 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the November 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim of service connection for ESRD, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for skin cancer, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes it has considered that generally the Board may not decide an appeal before one year has elapsed since the date of the rating decision on appeal, or 60 days from when the Board receives the notice of disagreement, whichever is later, as doing so would deprive the Veteran of her right to switch dockets. See Williams v. McDonough, 37 Vet. App. 305 (2024). In this case, one year has not yet passed from the date of the November 2025 rating decision on appeal. However, because the Veteran selected the Evidence docket and submitted evidence within the relevant evidentiary window for the Evidence docket, a docket switch is precluded under 38 C.F.R. § 20.202(c)(2). Therefore, Williams does not apply in this case and the Board will proceed with adjudication.

Entitlement to service connection for ESRD, to include as due to herbicide agent exposure.

The Veteran seeks service connection for his kidney disease as due to in-service herbicide agent exposure. See October 2025 VA Form 21-526.

Service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To prevail on a direct service connection claim, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or
Williams does not apply in this case and the Board will proceed with adjudication.

Entitlement to service connection for ESRD, to include as due to herbicide agent exposure.

The Veteran seeks service connection for his kidney disease as due to in-service herbicide agent exposure. See October 2025 VA Form 21-526.

Service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To prevail on a direct service connection claim, there must be (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, air, or space service, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The diseases that are deemed associated with herbicide agent exposure under VA law are listed in 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e).

As an initial matter, the AOJ determined the Veteran has a current diagnosis for ESRD, and conceded the Veteran's herbicide agent exposure due to his service in the Republic of Vietnam. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). While such findings have been made, the Veteran's ESRD is not listed under the statutory presumptive disabilities. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). This, however, does not preclude consideration that the Veteran's ESRD is directly related to his in-service herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Therefore, the remaining issue is whether the Veteran's ESRD is at least as likely as not began in service, or is otherwise etiologically related to an in-service event, injury, or disease, to include herbicide agent exposure.

The Veteran's service treatment records do not show a history of any symptoms or diagnoses related to his kidneys. The Veteran's January 1972 separation examination reflects that the Veteran's endocrine system and genitourinary system were clinically evaluated as normal, with no symptoms and/or diagnoses related to his kidneys indicated.

The Veteran's private treatment records demonstrate he sought treatment in July 2025. The Veteran was assessed with acute renal failure. See July 2025 private treatment records. It was also noted that the Veteran's acute renal failure was suspect in the setting of uncontrolled hypertension and being off all of his medications for greater than 6 months. Id. A September 2025 private treatment record noted chronic kidney disease (CKD) stage IV likely secondary to vascular and hypertensive disease. See September 2025 private treatment records.

The Veteran was afforded a VA examination in November 2025
and genitourinary system were clinically evaluated as normal, with no symptoms and/or diagnoses related to his kidneys indicated.

The Veteran was afforded a VA examination in November 2025. The VA examiner diagnosed the Veteran with ESRD. See November 2025 VA examination. The VA examiner noted the onset of the Veteran's kidney disability was in July 2025; there was no reported prior history of renal disease; and the Veteran presented in July 2025 for treatment and was admitted to the hospital with reports of weakness and elevated blood pressure. Id. The VA examiner opined that the Veteran's ESRD was less likely than not caused by in-service herbicide agent exposure, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. See November 2025 VA medical opinion. As rationale, the VA examiner noted the Veteran's ESRD was unrelated to the toxic exposure; it is more likely due to hypertension; and there was no evidence to support the Veteran's claim. Id.

Though the VA examiner noted the Veteran's ESRD was related to service connected hypertension and hypertension is a presumptive condition related to herbicide agent exposure, the Veteran is not currently service connected for hypertension.

The Board notes the Veteran is competent and credible to report symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent he asserts his ESRD is related to his in-service herbicide agent exposure, the Board notes that he has not been shown to have the medical training necessary to do so. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not provided any evidence demonstrating his ESRD is related to his active duty service, including herbicide agent exposure. Neither VA, nor private treatment records, demonstrate the Veteran's ESRD is related to his active duty service, to include in-service herbicide agent exposure. Moreover, the evidence does not demonstrate, and the Veteran does not content that his ESRD began in service and continued since service to warrant service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b). As noted, the Veteran indication of the Veteran's kidney disability was in July 2025, more than 40 years after separation from service.

In sum, the Board finds the evidence of record persuasively weighs against a finding that the Veteran's ESRD are the result of in-service herbicide agent exposure, or otherwise etiologically related to an in-service event, injury, or disease. Moreover, the evidence does not demonstrate, and the Veteran does not contend, that his ESRD began in service and continued since service. Therefore, the benefit of the doubt doctrine is inapplicable and service connection for the Veteran's kidney disability is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board again notes that the Veteran is not service connected for hypertension nor has he shown any intent to file a claim for service connection for hypertension. However, the Board encourages the Veteran to consider filing a claim for service connection for hypertension by filing a VA Form 21-526EZ, as well as a Supplemental Claim on a VA Form 20-0995 for service connection for ESRD as secondary to hypertension.

REASONS FOR REMAND

Entitlement to service connection for skin cancer of the right ear is remanded.

The Veteran seeks service connection for skin cancer of his right ear. See October 2025 VA Form 21-526.

Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty
However, the Board encourages the Veteran to consider filing a claim for service connection for hypertension by filing a VA Form 21-526EZ, as well as a Supplemental Claim on a VA Form 20-0995 for service connection for ESRD as secondary to hypertension.

REASONS FOR REMAND

Entitlement to service connection for skin cancer of the right ear is remanded.

The Veteran seeks service connection for skin cancer of his right ear. See October 2025 VA Form 21-526.

Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).

As an initial matter, the AOJ found the Veteran has a current diagnosis of basal cell cancer on his right ear and conceded in-service herbicide agent exposure. The Board is bound by these favorable findings. See 38 C.F.R. § 3.104(c).

The record indicates the Veteran receives private dermatology treatment for his skin cancer at "Wateredge Derm." See March 2019 VA and September 2025 VA treatment records. As the record indicates that there may be additional outstanding private treatment records relevant to his claim for service connection for skin cancer of his right ear, a remand is required for the AOJ to request that the Veteran submit or authorize for release any further outstanding private treatment records relevant to his claim. 38 C.F.R. § 3.159(c)(1); see Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019). As such, the Board finds that the failure to attempt to obtain the identified private treatment records prior to the rating decision on appeal constituted a pre-decisional duty to assist error. A remand is necessary so that appropriate attempts may be made to obtain any outstanding private treatment records. 38 C.F.R. § 20.802(a).

The Board notes the Veteran has not been afforded a VA examination or medical opinion for his skin cancer of the right ear; however, VA does not have a duty to provide one here. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA's duty to provide an examination only triggered if the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event). The AOJ found that the Veteran has been diagnosed with basal cell cancer of the right ear. VA treatment and private treatment records demonstrate the Veteran has a history of basal cell cancer of the right ear. See September 2025 VA treatment records; January 2019 private treatment records. The Veteran did not provide any evidence that his current diagnosis of basal cell cancer was related to his active duty service. VA and private treatment records are silent for any indication the Veteran's skin cancer of the right ear is related to his active duty service.

With respect to the Veteran's conceded herbicide agent exposure, the Board notes that the Veteran's basal cell cancer is not presumptively associated with herbicide exposure, and without competent evidence suggesting such a relationship is possible, VA has no duty to solicit a medical opinion on this matter. See McLendon, 20 Vet. App. at 83.

Additionally, under the PACT Act, VA is required to provide a disability examination and secure a medical nexus opinion when a veteran submits a compensation claim and has evidence of a disability and participation in a "toxic exposure risk activity (TERA)," but the evidence is not sufficient to establish service connection for the disability. See 38 U.S.C. § 1168(a). That provision provides, in pertinent part: "(a)(1) Medical examinations and medical opinions. Except as provided in subsection (b), if a veteran submits to the Secretary a claim for compensation for a service-connected disability under section 1110 of this title with evidence of a disability and evidence of participation in a toxic exposure risk activity during active military, naval, air, or space service, and such evidence is not sufficient to establish a service connection for the disability, the Secretary shall-

(A) provide the veteran with a medical examination under section 5103A(d) of this title; and

(B) obtain a medical opinion (to be requested by the Secretary in connection with the medical examination under subparagraph (A)) as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity."
as provided in subsection (b), if a veteran submits to the Secretary a claim for compensation for a service-connected disability under section 1110 of this title with evidence of a disability and evidence of participation in a toxic exposure risk activity during active military, naval, air, or space service, and such evidence is not sufficient to establish a service connection for the disability, the Secretary shall-

(A) provide the veteran with a medical examination under section 5103A(d) of this title; and

However, subsection (a) does not apply if the VA determines there is no indication of an association between the disability claimed by the veteran and the TERA for which the veteran submitted evidence. 38 U.S.C. § 1168(b). In VA's sub-regulatory guidance, one os the situations in which the exception applies is for a condition determine to have no positive association with herbicide exposure. VBA Letter 20-24-06, Exception to TERA Examination and Medical Opinion Requirement at pages 12-13 (June 12, 2024). The VA has determined, based on cumulative scientific data reported by the National Academies of Science since 1993, that nonmelanoma skin cancer, including basal cell carcinoma, have no positive association with herbicide exposure. Id. Additionally, the evidence of record, and the Veteran does not contend, that his skin cancer of the right ear was due to any other in-service TERA. See September 2025 TERA memorandum. The evidence also does not demonstrate, and the Veteran has not contended, that he has any other diagnosis of skin cancer related to his right ear to warrant a VA examination and medical opinion under the PACT Act.

Given the foregoing, there is no duty to obtain a VA examination and medical opinion, including a TERA opinion under the PACT Act in this matter. See McLendon, 20 Vet. App. at 83.

The matters are REMANDED for the following action:

1. Contact the Veteran request that he identify and/or submit outstanding private treatment records pertaining to his skin cancer of his right ear, to include from Wateredge Derm. If indicated, the Veteran should be asked to provide the necessary authorization so VA can attempt to obtain these records. The Veteran should be notified of all efforts to obtain such records. In that alternative, the Veteran may submit all outstanding pertinent private records directly to the VA for consideration.

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Moore, Carlin

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.

Analyze in VA Law Explorer