Citation Nr: 1334476 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-25 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a back disability. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a neck disability. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection for bilateral hearing loss is warranted. 5. Entitlement to service connection for kidney cancer. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955. This matter has come before the Board of Veterans' Appeals (Board) on appeal from April 2009 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to testify at a hearing before a Veterans Law Judge in March 2013; however, VA received a written request to cancel his hearing in March 2013. In August 2013, the Board remanded this case for additional development, that development has been completed and the case has been returned for further appellate review. This appeal was processed using the Veteran's Benefits Management System (VBMS). In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A January 2008 rating decision denied service connection for the Veteran's back and neck disabilities; the Veteran did not appeal that rating decision, and no new evidence pertinent to the basis of the denial of that claims was received by VA within one year from the date of that decision. 2. The additional evidence presented since the January 2008 rating decision is cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claims for service connection for back and neck disabilities, and does not raise a reasonable possibility of substantiating the claims. 3. A March 2007 rating decision denied service connection for the Veteran's bilateral hearing loss; the Veteran did not appeal that rating decision, and no new evidence pertinent to the basis of the denial of that claims was received by VA within one year from the date of that decision. 4. The evidence received since the March 2007 rating decision that denied the Veteran's claim of service connection for bilateral hearing loss is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim. 5. The preponderance of the evidence shows that the Veteran's bilateral hearing loss disability was not present until many years following service and is not related to service. 6. The evidence does not show that kidney cancer was present in service or for many years after discharge, nor is there competent and credible evidence suggesting that it is related to service. CONCLUSIONS OF LAW 1. The January 2008 rating decision that denied the claim of entitlement to service connection for back and neck disabilities is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). 2. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a neck disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. The March 2007 rating decision that denied the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). 5. Evidence received since the March 2007 rating decision is new and material and the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 6. The requirements for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 7. The requirements for establishing service connection for kidney cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claims; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. In this case, in correspondence dated in March 2009 and May 2009, the appellant was provided appropriate VCAA notice regarding what information and evidence is needed to substantiate his claims for service connection for bilateral hearing loss and kidney cancer as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letters advised the appellant of the need to submit new and material evidence to reopen the claims for service connection for bilateral hearing loss, a back condition and a neck disability, as well as the basis for the prior denials. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The appellant was also advised of how disability ratings and effective dates are assigned and the type of evidence which impacts that determination. Dingess v. Nicholson, 19 Vet App 473 (2006). The claims were last readjudicated in August 2013. The Board also finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained. Relevant to VA's duty to assist, the RO made multiple attempts to obtain the Veteran's service treatment records through the National Personnel Records Center (NPRC), but was informed by that facility that such records were presumed to have been destroyed in a July 1973 fire. Consequently, the RO contacted the Veteran and elicited information in an attempt to reconstruct his service medical data. The Veteran's service treatment records were deemed permanently lost. Accordingly, the RO issued a March 2007 formal finding that those records were unavailable. Consequently, the Board finds that VA met its obligation to search for alternative records that might support the Veteran's case. Cuevas v. Principi, 3 Vet. App. 542 (1992). Moreover, the Board finds that additional efforts to obtain the Veteran's service treatment records would be futile and are therefore unwarranted. The claimant was provided the opportunity to present pertinent evidence. In addition, he has been provided with VA examinations in connection with his claim for service connection for hearing loss and the application to reopen the claims for service connection for back and neck disabilities. With regard to the Veteran's claim of service connection for kidney cancer, VA is not required to provide the Veteran with a medical examination absent credible evidence relating the current disability to the Veteran's service. For these reasons, development for a VA medical examination is not warranted for that claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. New and Material Evidence Claims The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement (NOD) is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Board notes that the November 2012 supplemental statement of the case appears to have considered the claims to reopen on the merits. However, despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Back and Neck Disabilities The appellant's claim of entitlement to service connection for residuals of a back and neck injury were originally denied by way of a January 2006 rating decision. The RO determined that the evidence failed to show that a back or neck disability was either incurred in or caused by service, nor was there any medical evidence to link the claimed disabilities to service. Thereafter, by a rating decision in January 2008, the RO reopened the Veteran's previously denied claims for service connection for residuals of back and neck injuries and denied the claims on the merits because the evidence failed to show that a back or neck disability had onset in service or was caused by service, and there was no evidence to link the claimed disabilities to service. Ultimately, the January 2008 decision became final because the appellant failed to appeal the decision within the prescribed time and no new evidence pertinent to the basis of the denial of those claims was received by VA within one year from the date that the RO mailed notice of the determination to the appellant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In February 2009, the appellant again requested that the issues of service connection be reopened, which were denied by the RO in the April 2009 rating decision. The Veteran has appealed. The January 2008 rating decision is the last final decision on the merits of the claims. The claims decided therein are not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. In order to reopen the claims, new and material evidence is needed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). At the time of the August 2008 rating decision the evidence consisted of the Veteran's DD Form 214, which reflects that the Veteran served in the Army, with 11 months and 17 days of foreign/sea service. His occupational specialty was listed as polelineman and he was awarded the National Defense Service Medal, the United Nations Service Medal, and the Good Conduct Medal. VA treatment records that reflect treatment for the back and neck starting in 2000. In December 2000, the Veteran was seen for neck pain associated with a whiplash injury. A February 2003 clinical treatment note contained findings of lumbar spine arthritis. In April 2003, the Veteran reported a history of neck pain for 40 years. In September 2000 and October 2004, the Veteran reported a neck injury in service with ongoing neck pain since that time. An October 2004 MRI of the cervical spine and a December 2006 MRI of the lumbar spine revealed degenerative disc disease. Also of records were statements from the Veteran asserting the he incurred injuries to the back and neck when he fell over 20 feet during the performance of his duties as a polelineman in the summer of 1954 while stationed in Korea. Evidence added to the record since the time of the last final decision includes VA treatment records showing treatment for the lumbar and cervical spine disabilities, along with a history of onset of symptoms following an in-service fall while stationed in Korea. The evidence previously considered documented the presence back and neck disabilities, along with a history of onset of symptoms following injuries incurred in service. Cumulative evidence does not meet the regulatory definition of new and material evidence. 38 C.F.R. § 3.156 (2013). Also of record are statements from the Veteran asserting the he incurred injuries to the back and neck when he fell during the performance of his duties as a polelineman while stationed in Korea. Those statements are cumulative of the Veteran's previously considered assertions that he incurred injuries to his neck and back in service which resulted in the current neck and back disabilities. Thus, those contentions were already considered at the time of the previous final denial and are not new. Finally, the record contains a VA thorocolumbar spine medical examination report dated in March 2012. Following a review of the claims file and an examination of the Veteran, the examiner diagnosed lumbar and cervical spine disc disease, and opined that the Veteran's current back and neck disabilities, diagnosed more than one year after discharge from service, were not due to a fall injuries in Korea. The examiner noted that the Veteran's service treatment records were unavailable, and as such, for purposes of the examination, the examiner assumed that the Veteran incurred injuries to the back and neck as described by the Veteran. The examiner explained that the Veteran's occupational history post-service discharge, to include logging work, was inconsistent with significant in-service injuries. The examiner explained that degenerative changes in the cervical and lumbar spine were secondary to the natural degenerative process. The VA examiner's opinion opposes, rather than supports. As such, this new evidence does not show a causal relationship between the Veteran's neck and back disabilities and service, and does not raise a reasonable possibility of substantiating the claims. Therefore, the new evidence is not material and the request to reopen the claim is denied. 38 C.F.R. § 3.156. Bilateral Hearing Loss With regard to the Veteran's application to reopen the claim for service connection for bilateral hearing loss, in a rating decision in March 2007, the RO denied the claim on the basis that audiometric findings failed to show hearing loss for VA purposes under 38 C.F.R. § 3.385. The Veteran did not file a timely appeal of that rating decision and no relevant evidence pertinent to the basis of the denial of those claims was received by VA within one year from the date that the RO mailed notice of the determination to the appellant. The March 2007 decision is therefore final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran filed the current claim for service connection for bilateral hearing loss in May 2009. At the time of the previous denial the evidence of record consisted of VA treatment records which show complaints of hearing problems. In December 2001, a VA clinician indicated that the Veteran's hearing had been evaluated a year and half earlier in relation to symptoms reported when he fell off a truck. The clinician noted slight hearing loss on the right, not significant enough. The record also contained statements from the Veteran asserting excessive noise exposure in service from aircraft engine noise and explosions, with progressively worsening hearing since service. The claims file also contained a VA audiological examination in January 2007, which indicated the puretone thresholds in decibels that did not rise to the level of hearing loss disability under 38 C.F.R. § 3.385. Evidence added to the record since the time of the last final decision includes a VA hearing loss examination report in April 2012 that reflects a diagnosis of bilateral hearing loss pursuant to the criteria for hearing loss under 38 C.F.R. § 3.385, as well as statements from the Veteran relating onset of hearing loss in service. This evidence is new since it was not of record in March 2007 and material as it relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral hearing loss disability; namely, evidence of a currently diagnosed hearing loss disability under 38 C.F.R. § 3.385. As such, the evidence directly addresses the reason for the prior denial and must be presumed credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. New and material evidence having been presented, the claim is reopened. 38 C.F.R. § 3.156(a); see also Shade. 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). 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 ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss and cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Bilateral Hearing Loss The Veteran seeks service connection for a bilateral hearing loss due to excessive noise exposure in service from aircraft engine noise, firearms and explosions. The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2013). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). In this case, the medical evidence shows that the Veteran has bilateral hearing impairment as defined by VA regulation. 38 C.F.R. § 3.385. Having determined that the Veteran currently has diagnosis of bilateral hearing loss for VA disability purposes, the remaining question before the Board is whether there is nexus between the currently diagnosed hearing loss and his service. The Board initially observes that the Veteran served in the Army from April 1953 to March 1955, and his occupational specialty was listed as polelineman. He has competently reported being exposed to loud noise from aircraft engine noise, firearms and explosions. However, the preponderance of the evidence weighs against a finding that the Veteran's current hearing loss disability is related to his period of active military service, to include in-service noise exposure. Again, a formal finding was made on the unavailability of some of the Veteran's service records. The unavailability of a Veteran's service records, however, does not lower the legal standard for proving a claim for service connection, but rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, no presumption is created, either in favor of the Veteran or against VA, due to the absence of service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Here, the Veteran's service treatment records are not available and there is no evidence contemporaneous with service from any other source to affirmatively show that bilateral hearing loss disability was present during service or within one year following separation from service. Following service, VA treatment records after 2001 show complaints of hearing problems, to include a December 2001 VA clinical treatment report that noted that the Veteran's hearing had been evaluated a year and half earlier in relation to symptoms reported when he fell off a truck. The clinician noted slight hearing loss on the right, not significant enough. On VA audiological examination in January 2007, the Veteran reported excessive noise exposure during the performance of his duties in service as a polelineman, to include noise from aircraft engines, explosions, and firearms. The puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 20, 25, 25, 25, and 25, in the right ear, and 15, 20, 25, 25, and 25, in the left ear. The Veteran's speech recognition was 96 percent, bilaterally. Accordingly, the examiner noted audiometric findings that showed borderline normal hearing, bilaterally, and no hearing loss was found at that time. There is no competent evidence establishing that the Veteran had a hearing loss disability during service or within one year following discharge from service. To the extent the Veteran contends that he suffered from hearing loss during service, the presence of hearing loss disability requires medical testing to determine. Thus, as a lay person, his assertion is not competent medical evidence as to the clinical presence of hearing loss during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the fact that his hearing within normal limits in January 2007, 50 years after discharge from service, supports the conclusion that hearing loss disability was not present in service or for many years thereafter. Accordingly, the question in this case turns on whether the Veteran's current hearing loss disability is related to events during military service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To resolve this question, the Veteran was provided a VA examination to obtain an opinion on the matter. On VA audiological examination in April 2012, the Veteran reported acoustic trauma during service. The examiner reported test results that were indicative of bilateral hearing loss under 38 C.F.R. § 3.385, and diagnosed moderate to severe right ear hearing loss and moderate to moderately severe left ear hearing loss. Following a review of the claims file and an examination of the Veteran, the examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or the result of an event in military service. In this regard, the examiner noted that on VA examination in January 2007, more than 50 years after discharge from active duty, puretone thresholds in decibels at the tested frequencies of 500 through 4000 Hertz were within normal limits, bilaterally. The examiner concluded that in light of the VA examination findings reported in January 2007, it was not likely that the Veteran's current hearing loss was caused by noise exposure in service. The examiner further explained that although audiometric testing results were consistent with sensorineural hearing loss, there was a flat configuration which was not typical of noise induced hearing loss, and was more likely due to aging. The VA examiner, unlike the Veteran, has specialized expertise in the area of auditory disorders and is able to render a competent opinion regarding the likelihood that the claimed disorder is related to service. Also, the VA examiner's opinion is based on review of the claims folder and provided an adequate rationale for the conclusion. There is no medical opinion to the contrary. Thus, in summary, the most probative evidence shows that hearing loss disability manifested many years after discharge from service and that the current hearing loss disability is not etiologically related to active service. For these reasons, the preponderance of the evidence weighs against the award of service connection for bilateral hearing loss and thus service connection must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Kidney Cancer Again, a formal finding was made on the unavailability of some of the Veteran's service records. See Russo v. Brown, 9 Vet. App. 46 (19960; See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran's service treatment records are not in the claims file, and there is no evidence contemporaneous with service from any other source to affirmatively show that kidney cancer was present during service or within one year following separation from service. However, the Veteran does not contend such. After service, VA treatment records show that a spine MRI in August 2007 revealed a renal mass that was determined to be highly suspicious for renal cell carcinoma. A history of renal insufficiency in 2006 was also recorded. Bilateral renal masses were confirmed by a September 2007 CT scan. A November 2007 treatment report noted renal cancer, post-nephrectomy. It was also noted that his right kidney had been removed due to renal cancer and there was a lesion on the left kidney. The Veteran underwent cryotherapy in August 2008 for left kidney tumor. Subsequent treatment records document ongoing treatment for kidney cancer that metastasized. While lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence, the Veteran here is not claiming to have had kidney cancer since service. Thus continuity is not established either by the clinical record or through the Veteran's own statements. It is further noted that no medical evidence of record relates the Veteran's kidney cancer to active duty. On his notice of disagreement the Veteran reported that he was not claiming his cancer was due to radiation; rather, he alleged that he developed cancer secondary to medication prescribed to treat residuals of neck and back injuries incurred in service. The question of the etiology of kidney cancer is a complex medical question that requires medical expertise to determine. Thus, the Veteran's opinion on this matter is not competent medical evidence. See Jandreau, supra. Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2013). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). As discussed above, the Board has denied service connection for back and neck disabilities. As such, neither disability is service connected, and a threshold legal requirement for establishing secondary service connection for kidney cancer on a secondary basis is not met. Accordingly, the claim of service connection for kidney cancer, claimed as secondary to back and neck disabilities, must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). On his VA Form 9, the Veteran then asserted that his cancer was due to radiation exposure in service. However, no further allegation as to such exposure was made. In a prior claim, the Veteran had alleged exposure at Nagasaki or Hiroshima. However, he served in 1954, well after the occupation of Nagasaki or Hiroshima, and is not considered to have participated in a radiation risk activity. 38 C.F.R. § 3.309(d). Moreover, there is no medical evidence suggesting his kidney cancer is in any way related to his military service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER As new and material evidence has not been presented, the claim for service connection for a back disability is not reopened, and the appeal is denied. As new and material evidence has not been presented, the claim for service connection for a neck disability is not reopened, and the appeal is denied. As new and material evidence has been presented, the claim for service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted. Service connection for bilateral hearing loss is denied. Service connection for kidney cancer is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs