Citation Nr: 18160705
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 10-36 366A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a chronic renal disease, status post dialysis and kidney transplant is granted.
REMANDED
Entitlement to temporary total disability for chronic renal failure is remanded.
Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDING OF FACT
With the resolution of reasonable doubt in the Veteran’s favor, it is as likely as not that the Veteran’s chronic renal disease, status post dialysis and kidney transplant to be causally or etiologically related to service, to include his service in the Persian Gulf and service-connected lumbar strain.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a chronic renal disease, status post dialysis and kidney transplant have been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 2002 to September 2005, with service in Iraq. He received the Army Commendation Medal and Purple Heart among his awards and decorations.
The Veteran had requested a hearing before the Board after he disagreed with a January 2010 rating decision. In his substantive appeal of a separate October 2011 rating decision, he stated he did not want a hearing before the Board. The Regional Office (RO) sent letters in February 2012 and June 2012 requesting the Veteran to clarify whether he wanted a hearing including informing the Veteran that if he did not respond it would be assumed that he did not want a hearing. To date, the Veteran has not responded and the Board will treat the hearing request as having been withdrawn. 38 C.F.R. § 20.704(d) (2017).
In January 2014, the Board remanded the Veteran’s claim for additional development, to include obtaining an addendum opinion and/or new examination. The Board notes that a subsequent VA memorandum determined that the issues of entitlement to service connection for bilateral hearing loss, entitlement to an initial rating greater than 30 percent before February 4, 2010 and an initial rating greater than 50 percent after February 4, 2010 for posttraumatic stress disorder (PTSD), and entitlement to an initial rating greater than 10 percent before August 20, 2010 and an initial rating greater than 20 percent after August 20, 2010 for lumbosacral strain were addressed in a December 2007 statement of the case, which the Veteran did not timely respond and therefore no longer on appeal. An addendum opinion was obtained in January 2015 for the remaining issues listed on the title page of this decision. 
The claim was subsequently returned to the Board, which found additional development was required. The Board later procured a December 2016 opinion from a Veterans Health Administration (VHA) nephrologist. Further opinion from an independent medical expert (IME) was received in September 2018. The claim has since been returned to the Board for further consideration.
Service Connection
As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).
Where a Veteran served for ninety (90) days or more during a period of war, and a chronic disease, to include cardiovascular renal disease, becomes manifest to a degree of 10 percent within one year of 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. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. 
Service connection may be established on a secondary basis for a disorder which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b).
In addition, pursuant to applicable law and regulations, VA has authorized the payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of disability of 10 percent or more not later than December 31, 2021. 
Under 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) An undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection for infectious diseases.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 
A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii).
“Objective indications of chronic disability” include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuro-psychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). 
For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4).
If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54.
1. Entitlement to service connection for a chronic renal disease, status post dialysis and kidney transplant.
The Veteran contends that he is entitled to service connection for chronic renal disease, status post dialysis and kidney transplant. 
The Veteran had service from September 2002 to September 2005, including for an approximate 14-month period in Iraq. He received the Purple Heart. The injury that was the basis for this award was having received a lumbar strain and contusion to the right hand from an Improvised Explosive Device (IED) attack while on patrol in Iraq. The Board notes that the Veteran’s lumbar strain is service-connected and evaluated at 20 percent disabling.
In this case, the service treatment records do not appear to show a kidney disorder, or other readily obvious symptoms, manifestations, or diagnoses of a renal condition.
There is VA and private medical documentation on file since military separation.  In March 2011, private records show that the Veteran underwent a left kidney transplant, the diagnosis postoperatively being “end-stage renal disease secondary to idiopathic glomerulosclerosis.” The etiology was acknowledged to be unknown.
Thereafter, VA Compensation and Pension examination of December 2012 was completed to more thoroughly address the situation. The diagnosis at outset was status-post left kidney transplant; and advanced end-stage renal disease, immune complex-membranous. As to medical history, the Veteran had reportedly been diagnosed with end stage renal disease in 2009, renal transplant 2011, and immunosuppressive medications to prevent rejection. He had several hospitalizations of the previous year due to infections felt related to immunosuppressed state and being on chronic Bactrim. He was also then under treatment for hypertension. Exact etiology was not apparent from the available record. The VA examiner’s opinion was: 
The underlying etiology of the Veteran’s end stage renal failure, as delineated above, is uncertain. The kidney biopsy, as above, shows immune complex mediated renal disease with membranous glomerulopathy –– however, the cause is not discernable from reports of physician opinions. In fact, the Veteran’s end-stage renal disease is mentioned as of unknown cause. Reference to Harrison’s Principles of Internal Medicine [citation omitted] reveals multiple possible causes as well. In this circumstance, presently available data do not permit a determination of causation in-service. Specifically, it would be speculation, with the presently available information, to determine if the Veteran’s renal failure was incurred in or caused by service and lower back pain in-service.
Pursuant to the Board’s January 2014 remand, the Veteran underwent the requested re-examination in January 2015, indicating then that he developed significant renal abnormality documented by VA labs as early as March 2007. By September 2009, he was in total renal failure. Review of service treatment record lab reports from 2005 showed normal renal function and normal urinalysis. The opinion given was:  
It is less likely than not that the renal failure was caused by the IED trauma.  … Renal failure was documented by biopsy to be related to an unknown immune mediated process. Pathology results made no mention of trauma. The diagnosis of low back injury is correct in that he is service-connected for his back and has been to Dallas VA emergency dept. for treatment of his LBP. [Then indicated by the examiner were contents of a kidney biopsy pathology report from a Dallas VA medical facility emergency department, that ‘Ultra structurally there are subepithelial and mesangial electron dense deposits making this a case of immune mediated renal disease that is far advanced with significant glomerulosclerosis and severe tubular atrophy and interstitial fibrosis by light microscopy.’]
After a review of the above evidence, the Board found that a VHA opinion was needed for further clarification of the issue at hand. A VHA opinion from a board-certified nephrologist was obtained in December 2016. The nephrologist provided a thorough analysis of the Veteran’s medical history and evidence of record. The nephrologist indicated that after the Veteran’s IED injury, he returned to the United States in February 2005. The Veteran was seen at a hospital for complaints of arthralgias/rash. The nephrologist stated that the Veteran’s “urinalysis was normal, including his protein and RBC/per power field was 3 (normal range 0-5), serum creatine was 1 (normal range 0.7-1.2) and serum albumin was 4.1 (normal), [with] no evidence of any protein loss in urine.” The nephrologist observed that there were no further medical records indicating a kidney disease until March 2007, which was noted to be more than one year since his April 2005 separation from service. 
The March 2007 treatment report mentioned blood and protein in the urine on admission. The Veteran was advised to follow-up on these abnormalities, but there was no record of additional treatment until September 2009, when he was admitted with advanced kidney failure, and underwent a kidney biopsy and started dialysis. The nephrologist stated that the renal biopsy “showed subepithelial and mesangial electron dense deposits. Immunofluorescence showed limited findings likely due to severe glomerulolesions (all available glomeruli or severely globally sclerotic). There was severe tubular atrophy and interstitial fibrosis by light microscopy. Presence of both subepithelial and mesangial electron deposits suggests secondary membranous glomerulopathy (Nephropathy).” The nephrologist commented that the Veteran’s final kidney biopsy report was “Advanced end-stage immune complex mediated kidney disease with ultrastructural features of membranous glomerulopathy (nephropathy) possibly secondary membranous glomerulopathy [citation omitted]. No reference to any traumatic kidney injury.” After a review of the medical evidence, the nephrologist provided the following summary: 
Normal urinalysis, renal function and serum albumin in April 2005 (after the [Veteran] returned from Iraq he was exposed to an IED explosion) do not indicate (possibly undiagnosed) kidney disease/dysfunction. We do not have any medical records from and before the [Veteran’s] service that indicate kidney disease/dysfunction. No literature supports blunt trauma as a potential cause of any glomerular kidney disease (including membranous glomerulopathy/neuropathy) [citation omitted]. (2016: Up-to-date: major causes of membranous neuropathy) and again urinalysis in April 2005 was normal. Blunt trauma to the kidneys could present with hematuria and possibly proteinuria (typically acutely). 
The nephrologist stated that the Veteran’s disease “may qualify as cardiovascular renal disease (nephritis) but there is no proven connection to [Veteran’s] injury while in the service and there are no records available to show that his renal condition manifested within one year of service discharge.” The nephrologist concluded:
Therefore, it is less likely than not the [Veteran’s] chronic renal disease, need for dialysis, and s/p renal transplant etiologically is related to his active military service. Moreover, blood and urine tests from April 12, 2005 do not indicate undiagnosed kidney related illness or other qualifying chronic disability. The [Veteran’s] exposure to environmental hazard/trauma during his service in Iraq is less likely as not contributing to his claimed disability.
The Board acknowledges that the Veteran has also submitted several private medical opinions in support of his claim, including a July 2017 report from Dr. Ellis. Dr. Ellis opined that it is more likely than not that the Veteran’s chronic renal disease, status post dialysis and kidney transplant is due to his in-service exposure to environmental hazards, specifically, the particulate matter from burn pits and pollution while serving in Iraq from November 2003 to April 2005. Dr. Ellis explained that published medical literature shows that exposure to particulate matter has been associated with kidney damage and that there is a trend between the level of exposure to particulate matter and measures of poor kidney function. He noted that the Veteran served in Iraq and was exposed to smoke from burning trash and feces, as well as sand and dust. Dr. Ellis also explained that the Veteran’s medical records show that he has a familial history of kidney problems, which made him more susceptible to the effects of particulate matter. Dr. Ellis stated that the Veteran’s age at the time of objective testing confirmed the presence of his kidney condition and that end-stage renal disease is uncommon in adults under age 25. He then opined that this further indicated that an intervening factor, such as exposure to particulate matter, accelerated any predisposition he had for renal disease. 
In an attempt to further clarify the matter, the Board obtained an opinion from an IME in September 2018. After synthesizing the Veteran’s medical history, the IME stated: 
I have reviewed the medical opinions rendered by the VA expert, the [Veteran’s] private doctor and the nephrologist. Basically, all the opinions are consistent with a correct interpretation of the clinical information asserting that the kidney failure was related to immune mechanisms. I agree with the VA reviewer and the nephrologist that there is no evidence that the kidney failure was related to exposure during service. I disagree with the [Veteran’s] physician who opined that a relationship exists, as this opinion is mainly speculative. The literature suggests that when exposure to particulate matter results in kidney injury, the process is slow. In the Veteran’s case, the signs and symptoms started several years after discharge and then took a rather rapid course culminating in end-stage failure and transplant.
The IME concluded that there are three possible scenarios that may explain the Veteran’s condition: 1) The Veteran may have had subclinical kidney disease before joining the military. The condition may have evolved gradually while he was in the military and became manifest several years after discharge. The IME opined this possibility is unlikely; 2) The Veteran may have developed a subclinical condition while in-service. The condition may have evolved gradually to become fully manifest several years after discharge. The IME opined that this scenario is more plausible than scenario 1, but its likelihood is still less than 50 percent because the Veteran’s conditions in-service may have allowed exposure to particulate matter but the clinical condition remained asymptomatic and the progress of the disease was not gradual as would have been expected; and 3) The condition may be completely unrelated to service and resulted in from an unidentified renal insult that occurred several years after discharge. The IME stated that this is the most likely scenario and opined that the Veteran had bacterial infections and was started on potentially nephrotoxic antibiotics such as Bactrim. The IME reported that the Veteran continued to complain of muscle pain and was receiving several analgesics, some of which may have also been nephrotoxic. It was noted that the Veteran’s renal disease was rapidly progressing, indicating that the renal insult was acute. The IME opined that therefore, it is likely that an exposure to some unidentified injury after discharge may be the basis of the clinical condition of chronic kidney disease and failure. 
In response, the Veteran submitted a private report from Dr. Rivero in October 2018. Dr. Rivero reviewed the entirety of the Veteran’s electronic claims file and noted that while in Iraq, the Veteran was exposed to emissions from burn pits, which are known to contain heavy metals, organic hydrocarbons including Dioxin, Benzene, and Acrolein, which are accelerant fuels for combustion, as well as lead and other potentially toxic substances. Dr. Rivero noted that exposure to such toxic matter have all been linked to the development of chronic kidney disease and in the case of hydrocarbon exposure, it is linked to autoimmune and other types of glomerulonephritis, such as is documented with the Veteran. Dr. Rivero noted that exposure to silica and other particulate matter is also associated with the development or worsening of chronic renal failure. 
As a result, Dr. Rivero concluded that it is more likely than not that the Veteran’s end stage kidney disease from immune complex glomerulonephritis was caused by prolonged exposures to hydrocarbon fuels, heavy metals, silica, and particulate matter found in burn pits and sand storms. Dr. Rivero noted that she disagreed with the September 2018 IME report and conclusion that Bactrim was a potential cause of the Veteran’s renal failure. Dr. Rivero explained that the Veteran was not prescribed Bactrim until 2009, which was long after he began displaying significant renal abnormalities. Dr. Rivero stated that the long-term use of analgesics was predominantly for the Veteran’s service-connected back injury and that absent said injury, there is no indication that he would have required the same level of prolonged analgesic therapy. Dr. Rivero concluded that “it is my opinion that that any use of Bactrim or analgesics, would have merely served to accelerate the development of [the Veteran’s] end stage kidney disease that was triggered by his prolonged exposure to environmental toxins, as described above, during his service in Iraq.” 
When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991).
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran’s claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).
Considering the above, and with the resolution of reasonable doubt in the Veteran’s favor, the Board determines that it is at least as likely as not that the evidence shows that the Veteran’s chronic renal disease, status post dialysis and kidney transplant to be causally or etiologically related to service, to include his service in the Persian Gulf and treatment for his service-connected lumbar strain.
The Board acknowledges that there has been some previous speculation as to the cause of the Veteran’s kidney problems and is sympathetic to his current condition. The Board finds that the private treatment reports as carried significant value regarding the question of whether the Veteran’s chronic renal disease is etiologically related to service. The factual details discussed in these private opinions demonstrate that the private providers were fully informed of the Veteran’s medical history, and the opinions were thoroughly articulated and supported by a reasoned analysis. The private providers recited the pertinent facts, and synthesized the Veteran’s medical history and supported their opinions with specific examples from the record. To that end, Dr. Ellis explained that published medical literature shows that exposure to particulate matter has been associated with kidney damage and that there is a trend between the level of exposure to particulate matter and measures of poor kidney function. Furthermore, Dr. Rivero noted that exposure to toxic matter from burn pits have all been linked to the development of chronic kidney disease and in the case of hydrocarbon exposure, it is linked to autoimmune and other types of glomerulonephritis, such as is documented with the Veteran. Dr. Rivero also noted that the onset of the Veteran’s chronic renal failure predated his use of Bactrim, and opined that any use of Bactrim or other analgesics would have served to accelerate the development of his kidney condition. 
The Board also find that the September 2018 IME report actually tends to support service connection for the Veteran’s kidney condition as secondary to his service-connected back injury. This is because the Veteran has a service-connected back injury that requires prolonged analgesic therapy. In scenario 3, which the IME found to be the most likely explanation for the Veteran’s kidney condition, it was noted that the Veteran receives several analgesics, “some of which may have also been nephrotoxic.” Importantly, the IME did not distinguish any analgesic prescribed for another reason other than the service-connected back injury as the basis for the Veteran’s kidney condition.
Therefore, after review of the record, the Board finds that the evidence is in relative equipoise, as it shows the Veteran’s chronic renal disease, status post dialysis and kidney transplant to be causally or etiologically related to service, to include his service in the Persian Gulf and treatment for his service-connected lumbar strain. The benefit of the doubt is thus resolved in favor of the Veteran in this matter in granting service connection for chronic renal disease, status post dialysis and kidney transplant. 38 U.S.C. § 5107.
REASONS FOR REMAND
1. Entitlement to temporary total disability for chronic renal failure is remanded.
2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
With the grant of entitlement to service connection for a chronic renal disease, status post dialysis and kidney transplant herein, remand is required for the remaining issues in order to effectuate the Board’s decision and properly evaluate the severity of the Veteran’s condition.
Initial review of these matter should now be undertaken by the Agency of Original Jurisdiction.
The matters are REMANDED for the following action:
1. Implement the Board’s decision granting entitlement to service connection for a chronic renal disease, status post dialysis and kidney transplant so that the Veteran can be properly rated for said disability. Notify the Veteran of his rating and allow him sufficient time to respond, if he so desires.
2. Thereafter, develop the remaining issues giving consideration to the action taken above.  If at any point the Veteran is satisfied with the awards made and wishes to withdraw remaining appeals, he or his attorney should so inform the Agency of Original jurisdiction, which may then close the appeal.  Otherwise, the matter should be returned to the Board as appropriate.

 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Miller, Associate Counsel 

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