Citation Nr: 1803456 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-16 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for memory loss disability (claimed as secondary to herbicide exposure). 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for residuals of frostbite of the feet. 5. Entitlement to service connection for kidney disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2013, the Board remanded the appeal. In May 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In April 2015, the Board remanded the above issues. During remand status, the RO granted the claims of entitlement to service connection for cataracts and peripheral neuropathy of the bilateral upper extremities. See Rating Decision (August 2015); Rating Decision (August 2016). This is a full grant of the benefits sought on appeal with regard to those claims and there remains no controversy for the Board to consider. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board notes that VA obtained updated VA treatment records in November 2017 after issuance of the most recent Supplemental Statement of the Case. However, the Board finds that referral to the Agency of Original Jurisdiction (AOJ) is not warranted as the evidence is cumulative or redundant of previously considered. 38 C.F.R. § 20.1304(c) (Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues). The issues of entitlement to service connection for bilateral hearing loss disability and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A memory loss disability is not attributable to service. 2. Residuals of frostbite of the feet are not shown at any time during this appeal; the Veteran's abnormal neurological symptoms of the feet and lower extremities are separately rated as peripheral neuropathy of the lower extremities related to service-connected diabetes mellitus. 3. A chronic kidney disability is not shown at any time during this appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for memory loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for residuals of frostbite of the feet are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for kidney disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran, nor his representative, has alleged prejudice or any issues with the duty to notify or the duty to assist. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Accordingly, the Board will address the claims. II. Service Connection The Veteran seeks service connection for memory loss, hearing loss disability with tinnitus, residuals of frostbite of the feet, and kidney disability. The Veteran testified that he believes his memory problem are related to post traumatic stress disorder (PTSD) and exposure to herbicides. Hearing Transcript at 2. He testified that his hearing problems are related to in-service ear infection and/or noise exposure. He reported onset of hearing trouble in service and continuing after his release. Hearing Transcript at 4-6. Also, the Veteran testified that he had tingling/numbness in his feet and that he served in frigid temperatures while in Korea. Hearing Transcript at 8-11. Lastly, he testified concerning his kidney claim; but when asked to identify the condition or disability, he stated that "I don't know." Hearing Transcript at 8. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. Legal Criteria Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Organic diseases of the nervous system, such as, sensorineural hearing loss and tinnitus, shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases deemed associated with herbicide exposure for purposes of the presumption are set out at 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. However, for the presumption to apply the presumptive disease must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide. 38 C.F.R. §§ 3.307(a)(6), 3.309(a). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). B. Memory Loss Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for memory loss disability. A memory loss disability is not attributable to service. A memory loss disability is not shown in service or within the initial post separation year. Memory loss is first shown many years after service discharge. During this appeal period, a memory loss disability, to include "cognitive disorder NOS" has not been attributed to service including herbicide exposure. To the extent that the Veteran has memory loss associated with psychiatric disability, this symptom is compensated separately as part of his service-connected major depressive disorder and there is no indication that memory loss is related to any other underlying disability attributable to service. Service treatment records (STRs) reflect no complaints or findings for memory problems. Service separation examination dated in December 1969 reflects normal clinical evaluation of the neurologic and psychiatric systems. VA received a claim of entitlement to service connection for memory problems in May 2009 in conjunction with a claim PTSD (which was later withdrawn). The Veteran theorizes that he has memory problems attributable to PTSD and/or herbicide exposure. See VA Form 21-4138 (May 2009). In June 2010, the Veteran reported to VA that he drank heavily after service, and that he forgets the names of streets and places. See VA Form 21-4138 (June 2010). Report of VA general medical examination dated in September 2001 reflects a medical history from the Veteran. The Veteran did not report memory problems. VA treatment records dated in 2007 reflect that the Veteran reported some forgetfulness; however, mental status exam showed intact memory/cognition. VA treatment records reflect increased memory complaints in 2008, assessment as cognitive disorder NOS (not otherwise shown). A March 2008 note reflects complaints of memory problems; the assessment was depression and memory loss. A March 2009 VA treatment note shows complaints of memory loss; the assessment was "depressive symptoms" including symptoms of short-term memory impairment. An April 2009 neuropsychological evaluation reflects there was no neurodegenerative disorder based on tests. An April 2009 note reflects a diagnosis for depressive disorder rule out cognitive disorder/dementia. A January 2012 neuropsychological note shows that there was a history of major depression and cognitive complaints of many years. At this time, testing indicated that "an Alzheimer's pattern is not suggested." MRI of the brain in 2014 suggested that hypothyroidism may play a component in the memory complaints, but it was also thought that the Veteran might have underlying dementia due to brain atrophy. A December 2014 note reflects that the Veteran reported first noticing memory problems in 2001. Report of VA examination dated in May 2015 reflects that the Veteran had subjective memory complaints, but the results of diagnostic testing showed normal cognitive functioning. The examiner explained that, although the Veteran's VA psychiatrist and neurologist indicate a diagnosis of "Cognitive disorder NOS," "today's evaluation and according to reviewed medical records" show cognitive function in the normal range. A February 2016 VA neuropsychological evaluation reflects that the Veteran, age 72, had a history of major depressive disorder and past evaluation for complaints of memory and cognitive decline. By history, the Veteran noticed a memory decline about 15 years earlier after his retirement (due to back problems) and after starting medication for depression. The Veteran complained of long and short-term memory problems. He remained independent in his basic activities of daily living-it was noted that he enjoyed cooking and drove without any accident/tickets or concerns about his driving ability. Objectively, the Veteran performed within normal limits on most cognitive tests, including memory. The examiner observed that: Current testing, similar to previous testing, suggests that some caution is warranted in interpreting the objective cognitive testing due to indicators of low task engagement. However, and also similar to previous testing, the patient generally performed within normal limits across most cognitive tests administered, including objective tests of memory. The examiner concluded that: Overall, the patient's history and performance on testing is consistent with a broadly normal cognitive examination. There is no evidence from both history and repeat testing to suggest an underlying neurodegenerative process at this time. A March 2016 addendum by a VA licensed psychologist reflects a concurrence with the February 2016 VA neuropsychologist's findings that that testing/evaluation results "do not support his contention or claim of memory loss" because "his history and performance were consistent with normal cognitive functioning." She noted that a cognitive/memory diagnosis or disorder was ruled out and that "His cognitive complaints, for which there is no supporting evidence, were assumed to be related to depressive complaints/symptoms/disorder." Here, the medical evidence weighs against a finding of memory loss disability attributable to service. Memory problems are not shown in service; the Veteran reports onset of memory problems decades after service separation (roughly 2001); and the medical evidence suggests that there is no current memory loss disability. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). Additionally, to the extent that the Veteran has "Cognitive Disorder, NOS," competent evidence has not been presented showing that this is a separately ratable disability apart from service-connected major depression. The Board accepts that the Veteran is competent to report his symptoms of memory loss. See Layno, supra. However, he is not competent to opine that he has a chronic disability manifested by memory loss or that any memory loss disorder (i.e. Cognitive Disorder NOS) shown during this appeal is attributable to service, including herbicide exposure. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Veteran's opinion that he has memory loss disability attributable to service, including herbicide exposure, has no probative value. The Board observes that the Veteran has not presented a favorable medical opinion to weigh against the other evidence of record. The Board acknowledges the Veteran's theory that he has a memory loss disability related to herbicide exposure. Although VA concedes herbicide exposure, memory loss is not a presumptive disability associated with herbicide exposure and competent evidence has not been presented showing that the Veteran has a memory loss disability attributable to herbicide exposure. Therefore, this theory has no probative value. The Veteran's medical opinion has no probative value in this regard as this is a complex medical question beyond the ken of laymen. See Jandreau, supra. The Board further acknowledges the Veteran's theory of secondary service connection based on PTSD. However, the Veteran is not service-connected for PTSD and, therefore, consideration of the legal criteria pertaining to secondary service connection in this regard is not warranted. 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board assigns greater probative value to the December 1969 service separation examination showing normal clinical evaluation of the neurologic and psychiatric systems, coupled with (1) the absence of complaint or findings for memory loss in service or for many decades after service separation and (2) the 2015 and 2016 VA medical opinions showing that the Veteran's cognitive function (including memory) are within normal range. The STRs are more probative than the Veteran's unsubstantiated opinion because they were prepared contemporaneous with service and reflect a more accurate picture his physical/mental health at that time than history recorded many decades later. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Also, the VA medical opinions are more probative than the Veteran's unsubstantiated opinion as they were prepared by skilled, neutral medical professionals after appropriate evaluation and testing of the Veteran, and after review of the claims file. On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Accordingly, the claim is denied. C. Frostbite of the Feet Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for residuals of frostbite to the feet. Cold injury (frostbite) to the feet is not shown in service. Residuals of frostbite of the feet are not shown at any time during this appeal. Although the Veteran has symptoms and abnormal neurological pathology of the feet, the underlying disability-peripheral neuropathy of the lower extremities-has been attributed to service-connected diabetes mellitus, which is separately rated and not before the Board at this time. STRs reflect no complaints or findings for cold injury or frostbite. Report of separation examination dated in December 1969 reflects normal clinical evaluation of the feet and neurologic system. Post service VA treatment records dated 2001 to 2008 reflect no history of frostbite injury in service. In May 2009, VA received a claim of entitlement to service connection for frostbite of the feet. See VA Form 21-4138 (May 2009). Report of VA examination dated in October 2012 reflects that the Veteran does not now have or has ever had a diagnosis for cold injury. By history, the Veteran was exposed to rain and snow while serving in Korea. He did not recall any specific injury. The examiner found that that it was less likely than not that frostbite of the feet was incurred in or caused by service. The rationale was simply that there is no significant evidence of cold injury. The examiner explained as follows: The onset of numbness is most likely related to his spine condition and associated or aggravated by the diabetes mellitus. There is no evidence of cold injuries and the veteran does not recall any specific incident. He has well documented peripheral neuropathy with diabetes and onychomycosis bilaterally. The medical evidence weighs against a finding of frostbite injury or residuals of frostbite. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). The Board accepts that the Veteran is competent to report his injuries and symptoms. See Layno, supra. However, in this case, the Veteran does not recall any specific injury and merely theorizes that he had in-service frostbite based on cold temperatures during his Korea service and subsequent onset of numbness/tingling symptoms in the feet even though his symptoms have been medically attributed to another etiology. In this case, the Veteran is not competent to retrospectively diagnose himself as having had a frostbite injury in service or to attribute any current foot or nerve symptoms to a past frostbite injury in service as he lacks the requisite medical expertise. See Jandreau, supra. Therefore, the Veteran's opinion has no probative value in this regard. The Board observes that the Veteran has not presented a favorable medical opinion to weigh against the other evidence of record. The Board assigns greater probative value to the December 1969 service separation examination showing normal clinical evaluation of the feet and neurologic system, coupled with negative November 2012 VA medical opinion.. This evidence is more probative than the Veteran's unsubstantiated opinion as it was prepared by skilled, neutral medical professionals after examination of the Veteran and, in the case of the 2012 VA medical opinion, review of the claims file. On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Accordingly, the claim is denied. D. Kidney Disability Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for kidney disability. A chronic kidney disability is not shown at any time during this appeal. STRs reflect no complaints or findings for kidney disorder. In July 2007, VA received a claim for "kidney condition." See VA Form 21-4138 (July 2007). VA treatment records dated in 2007 reflect that the Veteran had an episode of microhematuria. A November 2007 lab report shows findings were negative for chronic kidney disease. A December 2007 note reflects findings for microhematuria with a past medical history for one episode 10 years earlier. The Veteran denied history of kidney stones or flank pain. A January 2008 CT showed "faint punctate" calcification in right kidney otherwise normal kidneys; the assessment was negative hematuria work up. Report of VA examination dated in April 2008 reflects, although the Veteran claimed to have kidney disease, "there is no diagnosis because there is no pathology to render a diagnosis." The medical evidence shows no findings consistent with chronic kidney disease. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). To the extent that a 2008 CT showed punctate calcification in the right kidney, there is no indication in the record that the Veteran had kidney stones in service or has chronic kidney stones (punctate calcifications) attributable to service. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for memory loss disability is denied. Service connection for residuals of frostbite of the feet is denied. Service connection for kidney disability is denied. REMAND Having carefully reviewed the record, the Board finds that remand is necessary. The Veteran testified that he believes his current hearing problems are attributable to ear infections he had in service. The most recent VA medical opinion does not address the Veteran's theory of entitlement. Therefore, the Board believes that remand is necessary for a new VA examination with a medical opinion to ensure that VA has fully satisfied its duty to assist the Veteran. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA audiological examination using the most recent Disability Benefits Questionnaire. The claims file must be reviewed and the review noted in the report. A complete medical history should be obtained. The examiner should opine on whether the Veteran's hearing loss disability and/or tinnitus is etiologically related to service, to include noise exposure and/or ear infections. The examiner must specifically address the Veteran's theory that in-service ear infection caused his current hearing loss disability and/or tinnitus. The examiner should accept the Veteran's history of ear infections as truthful unless otherwise shown by the record. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs