Citation Nr: 20022409 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-34 085 DATE: March 31, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for kidney cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to December 1969. For his service, the Veteran has earned the Vietnam Service Medal. See DD214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for bilateral hearing loss, tinnitus, and kidney cancer. For the reasons that follow, the issues on appeal are remanded. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss was caused by noise exposure from M60 machine guns and helicopter engines in the regular course of his duties as a helicopter mechanic. See August 2017 VA examination report. The Veteran was afforded a VA examination in August 2017 for his bilateral hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was less than likely related to service because there was no threshold shift in either ear between the Veteran’s enlistment and separation examinations. Id. No further rationale was provided. Id. The U.S. Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the Court’s holding in Hensley is consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board observes that the examiner’s opinion is reliant on a finding that the Veteran did not exhibit hearing loss during active service in providing a negative nexus. See August 2017 VA examination report. However, reasoning based on an absence of evidence concerning in-service hearing loss is inconsistent with the analysis required under Hensley. It is also noteworthy that the examiner’s opinion does not address the Veteran’s credible lay testimony regarding in-service noise exposure as this is indeed pertinent to service and essentially serves as the basis for the claim. Thus, the examiner’s nexus opinion is inadequate for adjudicative purposes and a new medical opinion is required on remand. 2. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA examination for his tinnitus in August 2017. The examiner opined that the Veteran’s tinnitus shares the same etiology as his right ear hearing loss. See August 2017 VA examination report. The Board notes that the Veteran’s tinnitus allegedly started in 2012. Id. The record does not show the Veteran has ever asserted that his tinnitus has remained consistent since separation. Thus, the issue of service connection for tinnitus is inextricably intertwined with the predicate issue of entitlement to service connection for bilateral hearing loss. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for kidney cancer is remanded. The Veteran contends that his kidney cancer is a result of his exposure to an herbicide agent while he was in Vietnam. See October 2017 notice of disagreement. He contends that his kidney cancer should be afforded the same presumption afforded to prostate cancer in relation to herbicide exposure. Id. The Veteran is accurate that service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The presumption is applicable where the disease manifests to a compensable degree in a veteran who had active service for at least 90 days in the Republic of Vietnam between January 9, 1962 and May 7, 1975, even where there is no record of such disease during service. Id. However, the presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Thus, to benefit from the presumption, the Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e), which includes prostate cancer as noted by the Veteran, and have been exposed to an herbicide agent. Kidney cancer, however, is not included as one of the diseases enumerated in 38 C.F.R. § 3.309(e). Therefore, kidney cancer is not afforded the same presumption. The Board notes that even if a veteran is not entitled to the presumption, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, the Veteran has not been afforded a VA examination. There is insufficient evidence of record for the Board to make a decision as to whether the Veteran’s kidney cancer was caused by his active duty service, to include his presumptive exposure to herbicide agents. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Thus, remand is required to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral hearing loss, tinnitus, and kidney cancer that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s bilateral hearing loss was incurred in, or is otherwise related to, his time on active service, to include noise exposures from M60 machine guns, helicopter engines, and his MOS therein? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in number 1 above is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s tinnitus. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiry: A. Is it at least as likely as not that the Veteran’s tinnitus was incurred in, or is otherwise related to, his time on active service, to include noise exposures from M60 machine guns, helicopter engines, and his MOS therein? B. Is it at least as likely as not that the Veteran’s tinnitus was (a.) caused or (b.) aggravated by his asserted hearing loss? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the development in number 1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his kidney cancer. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: A. Is it at least as likely as not that the Veteran’s kidney cancer was incurred in, or is otherwise related to, his time on active service, to include his presumptive exposure to herbicides? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.