Citation Nr: 18140504 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-10 340 DATE: October 3, 2018 ORDER New and material evidence having been received, the claim of service connection for hearing loss is reopened. Service connection for tinnitus is granted. REMANDED Service connection for hearing loss is remanded. Service connection for a kidney condition is remanded. Service connection for bladder cancer is remanded. An initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 3, 2014, and in excess of 50 percent therefrom, is remanded.   FINDINGS OF FACT The Veteran’s tinnitus is related to service based on a continuity of symptomatology. CONCLUSIONS OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1967 to July 1970. This matter is on appeal from a November 2012 rating decision. The Veteran testified at a Board hearing in February 2018. The record was held open and additional evidence was thereafter submitted. 1. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss. By a January 1971 rating decision, the Veteran’s original, October 1970 claim of service connection for hearing loss was denied. He was notified of the decision by letter later that month, which was mailed to his then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in March 2012. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 1971 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for hearing loss is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also February 2018 Board hearing testimony; a Dr. Graf June 2018 medical opinion. The reopened claim will be further addressed on remand. 2. Service connection for tinnitus. The Veteran contends that tinnitus started during service due to noise exposure in the artillery. Board Hr’g Tr.3. The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, there has been a continuity of the same symptomatology since service. First, it is not in question that the Veteran has a current diagnosis of tinnitus as established on VA examination in April 2012. This diagnosis is considered as listed as a chronic disease in § 3.309(a) (as an organic disease of the nervous system) and is, therefore, eligible for the continuity of symptomatology provision of § 3.303(b). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To this extent, the probative evidence establishes a continuity of symptomatology. No treatment records show complaints of tinnitus during or after service. However, the Board finds probative that the Veteran filed a claim of service connection in October 1970 for “loss of hearing.” At his February 2018 Board hearing, the Veteran described the circumstances of that claim. He explained that he was “having a lot of problems with all the noise that was going on and had some in my ears and had some pain in my ears.” Board Hr’g Tr. 4. His testimony does not expressly identify symptoms of tinnitus, such as ringing, during or proximate in time to service. However, it refers to “noise” in his ears, which is reasonably understood to mean a ringing-type noise consistent with tinnitus. This evidence, when considered collectively, is probative evidence indicating that his tinnitus had already started by the time he filed his October 1970 claim, or at least symptoms of what eventually was diagnosed as tinnitus. When reasonable doubt is resolved in the Veteran’s favor, a continuity of symptomatology is established since service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A continuity of symptomatology is another manner in which to show a nexus. See 38 C.F.R. § § 3.303(b); Walker v. Shinseki, 708 F.3d at 1331. Accordingly, service connection is warranted for tinnitus. REASONS FOR REMAND 1. Service connection for hearing loss. A new VA examination is warranted to address the Veteran’s bilateral hearing loss claim. The Veteran previously underwent a VA examination in April 2012. That VA examiner reached a negative opinion based on there being no significant threshold shift between enlistment and a post-service, December 1970 audiogram. The examiner found the December 1970 audiogram to show hearing within normal limits. The VA examiner also cited a study, which the examiner found to mean “[e]ssentially veterans and non-veterans were equally likely to have hearing loss and the degree of hearing loss is likely to increase[ ] or worsen[ ] with age.” The VA examiner also reasoned that “it would be difficult to attribute[ the] Vet[eran]’s current hearing impairments to solely to [his] military noise exposure without considering other factors which affects hearing loss such as aging, various health issues, ear diseases and history of noise exposure from occupational and recreational activities 41 years after his military service.” This examiner’s opinion is incomplete for two reasons. First, it did not appear to consider all of the evidence, especially a private medical record showing audiogram testing from 1993 to 2011. This testing indicates hearing loss in the left ear meeting VA’s definition of a disability under § 3.385. The April 2012 VA examiner found no such hearing loss disability in the left ear. Thus, the VA examiner’s opinion appears incomplete by not reviewing these records. Second, and more importantly, the VA examiner stated that “it would be difficult” to attribute the Veteran’s current hearing loss to military noise exposure without considering other factors. To this extent, the critical question in this case is not whether other factors may have contributed to the Veteran’s hearing loss, but whether the Veteran’s current hearing loss is related to service by at least the probability of 50 percent or greater. The VA examiner’s ultimate opinion is difficult to reconcile with the qualifying statement indicating “it would be difficult to attribute” his hearing loss to the in-service noise exposure. Accordingly, a new VA examination is warranted. 2. Service connection for a kidney condition. This issue is remanded to (1) obtain the Veteran’s private treatment records for this condition, and (2) obtain a VA examination. Regarding the private treatment records, the Veteran testified at the February 2012 Board hearing that he first had a kidney operation in 1971 in California. Board Hr’g Tr. 13. Aside from this treatment, his private medical records, such as in May 2012, also refer to other treatment for kidney stones. These records have not been obtained. A remand is required to allow VA to obtain authorization and request these records. As to the need for a VA examination, the record reasonably raises three alternative theories of entitlement. First, he testified at the Board hearing that he had his first kidney operation in 1971, which would have been within one year of his service separation (or nearly so). Accordingly, a direct theory of entitlement is raised. Second, he has indicated that his condition may be due to herbicide exposure during service, including Agent Orange, White, and Blue. Board Hr’g Tr. 9. Finally, he indicates service at Camp Lejeune, which reasonably raises the issue of exposure to contaminants in the water supply at Camp Lejeune. These theories should all be addressed on remand. 3. Service connection for bladder cancer. The Veteran maintains that bladder cancer is presumptively due to exposure to contaminants in the water supply at Camp Lejeune. He testified that he had at least 39 days of service at Camp Lejeune from January to February 1968. Board Hr’g Tr. 10. Currently, the claims file does not contain any information confirming (or rebutting) his testimony that he served at Camp Lejeune. The available service records note U.S. service in Camp Pendleton and San Diego, California. Service department records can officially establish his dates and place of service. See 38 C.F.R. § 3.312. Absent such records here, a remand is warranted to obtain his service personnel records (SPRs). If SPRs fail to show sufficient Camp Lejeune service, any other necessary development should be undertaken to verity such service. 4. An initial disability rating in excess of 30 percent PTSD prior to December 3, 2014, and an evaluation in excess of 50 percent therefrom. The Veteran submitted a timely notice of disagreement (NOD) in December 2013 with a November 2012 rating decision, which granted service connection for PTSD, which was then rated at zero percent. A statement of the case (SOC) has not yet been issued. While a March 2015 rating decision granted staged increased ratings for PTSD, there is no indication that this action sufficiently safisfied the Veteran’s appeal. The March 2015 rating decision notes that the Veteran was appealing for a rating higher than the initially assigned zero percent. While this is true, the appeal for a higher rating was not limited to a certain amount in the NOD. The claimant is presumed to be seeking the maximum benefit. Thus, the action did not fully satisfy the appeal. As such, a remand is required for the issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The RO has since proposed to reduce the rating for PTSD. However, this proposed action does not moot the Veteran’s NOD as to the increased rating issue or otherwise resolve the appeal for that issue. As such, an SOC remains needed. The matter is REMANDED for the following action: 1. Unless the benefit sought is granted in full, send the Veteran and his representative an SOC that addresses the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD prior to December 3, 2014, and an evaluation in excess of 50 percent therefrom. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Ask the Veteran to complete a VA Form 21-4142 for all private (non-VA) treatment for his kidney condition. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s complete SPRs. Undertake any other necessary development to verify Camp Lejeune service if not established by the SPRs. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hearing loss. The examiner should opine as to whether any hearing impairment is at least as likely as not related to an in-service injury, event, or disease, including noise exposure. A complete rationale or explanation should be provided for any opinion reached. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his kidney condition. The examiner should provide an opinion as to each of the following: (a.) Whether any kidney condition at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) is otherwise related to service. (b.) Whether any kidney condition is at least as likely as not related to presumed in-service herbicide agent exposure. (c.) Whether any kidney condition is at least as likely as not related to contaminants in the water during service at Camp Lejeune (if shown to have 30 or more days service there). In answering these questions, the examiner is asked to disregard whether the disorder is one for which a “presumption” is established and, instead, to answer whether the medical condition is a result of Agent Orange or Camp Lejeune exposures even though it is not on the list of “presumptive” diseases. (Continued on the next page)   A complete rationale or explanation should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel