Citation Nr: 20023030 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 11-05 421 DATE: April 2, 2020 ORDER Entitlement to service connection for a lung disorder, diagnosed as pulmonary thromboembolism, is granted. REMANDED Entitlement to service connection for a kidney disorder, to include as due to exposure to chemicals and/or as secondary to service-connected degenerative arthritis of the lumbar spine, is remanded. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to July 20, 2016; and in excess of 10 percent on or after July 20, 2016, is remanded. FINDING OF FACT The United States Court of Appeals for Veterans Claims (Court) reversed the portion of the Board's December 2017 decision that denied entitlement to service connection for a lung disorder. CONCLUSION OF LAW The criteria for service connection for a lung disorder, diagnosed as pulmonary thromboembolism, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from November 1960 to August 1964. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. In decisions dated in July 2014 and April 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. In June 2015, the Veteran testified at a Travel Board hearing before the undersigned Veteran’s Law Judge. A transcript from that proceeding is associated with the claims file. The Board notes that the August 2010 rating decision granted entitlement to service connection for bilateral hearing loss and assigned an initial noncompensable disability rating effective from June 30, 2009. During the pendency of the Veteran’s appeal of this initially assigned rating, an October 2016 rating decision increased the disability rating to 10 percent effective from July 20, 2016. As the assigned evaluations are less than the maximum available rating, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a December 2017 decision, the Board denied the Veteran’s increased rating claim for bilateral hearing loss as well as his service connection claims for a lung disorder and a kidney disorder. The Veteran appealed this determination to the Court. In a June 2019 Memorandum Decision, the Court reversed the Board's denial of entitlement to service connection for a lung disorder. The Court also set aside the Board’s denial of the Veteran’s increased rating claim for bilateral hearing loss and his service connection claim for a kidney disorder. The Court then remanded the matter to the Board for development consistent with the Memorandum Decision. 1. Entitlement to service connection for a lung disorder. As noted above, the June 2019 Memorandum Decision reversed the Board’s denial of the Veteran’s service connection claim for a lung disorder and remanded the claim for assignment of a disability rating. The Court found that in denying the Veteran's claim, the Board erred in failing to address positive VA nexus opinions dated in June and November 2016 that related the Veteran's current diagnosis of pulmonary thromboembolism to his active service. Accordingly, the Board has implemented the grant of service connection as instructed by the Memorandum Decision and notes that the AOJ will assign the appropriate rating for the Veteran's lung disability. REASONS FOR REMAND 1. Entitlement to service connection for a kidney disorder, to include as due to exposure to chemicals and/or as secondary to service-connected degenerative arthritis of the lumbar spine, is remanded. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to July 20, 2016; and in excess of 10 percent on or after July 20, 2016. is remanded. In the June 2019 Memorandum Decision, the Court found that the Board erred in not attempting to obtain relevant, private treatment records that the Veteran identified in an April 2017 statement. Consequently, the AOJ should attempt to obtain these records upon remand. The Court also determined that the Board erred in failing address a theory of secondary service connection that had been raised by the Veteran regarding his service connection claim for a kidney disorder. In statements dated in June 2010 June 2017, the Veteran indicated that his kidney disorder was secondary to his service-connected lumbar spine disability. Although a VA medical opinion was obtained in June 2016, the opinion did not address this theory of entitlement. The Board therefore finds that an additional medical opinion should be obtained on remand. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). The record also reflects that the Veteran has contended that his kidney disorder is related to in-service exposure to trichloroethylene and carbon tetrachloride. See June 2015 Board Hearing Transcript; June 2010 Statement. The Veteran reported that these chemicals were used by the electrical department to clean various types of equipment while he was stationed aboard the USS Hull (DD-945). The Veteran’s military personnel records reflect that he had active service aboard this ship. Although the Veteran’s DD 214 does not list a specific military occupational specialty, it does note that the Veteran’s related civilian occupation was powerhouse engineer. On remand, the AOJ should take any appropriate steps to attempt to verify the claimed chemical exposure. The VA treatment records reflect that several outside documents relating to the Veteran's treatment were scanned into Vista imaging. See, e.g., May 2015 VA treatment record. However, documents viewable through Vista Imaging which have not been associated with the claims file are not accessible by the Board. Consequently, VA should make reasonable efforts to obtain these records for the Veteran's claims upon remand. See 38 C.F.R. § 3.159(c)(3); Sullivan v. McDonald, 815 F.3d 786, 791-92 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment related to his increased rating claim for bilateral hearing loss and service connection claim for a kidney disorder. The AOJ should specifically request that the Veteran provide authorization to obtain treatment records from the St. Francis Hospital Warren Outpatient Clinic. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since February 2017, and any records viewable in Vista Imaging, CPRS or any similar viewing tool. 2. The AOJ should take any appropriate steps to attempt to verify the Veteran's claimed exposure to chemicals, specifically trichloroethylene and carbon tetrachloride, while the Veteran was stationed aboard the USS Hull (DD-945) The AOJ should note that the Veteran reported in a June 2010 statement that trichloroethylene and carbon tetrachloride were used by the electrical department to clean various types of equipment while he was stationed aboard the USS Hull (DD-945). The Veteran’s military personnel records also reflect that he had active service aboard this ship. 3. After the preceding development in paragraphs 1 and 2 is completed, obtain a VA medical opinion from a qualified examiner that addresses the Veteran's service connection claim for a kidney disorder. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current kidney disorders. For each identified disorder, the examiner should address the following questions: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during, or is otherwise related to, active service, to include any verified exposure to chemicals therein? b) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated by the Veteran’s service-connected degenerative arthritis of the lumbar spine. In providing an opinion, the examiner should address the following: (1) the Veteran’s June 2010 statement reporting that his doctor told him that part of his kidney problem resulted from an enlarged muscle in his low back; (2) Veteran's May 2017 statement in which he reported that his doctor informed him that his PSOAS muscle was so large that it distorted the ureter and would not let him expel his kidney stones in a normal manner; and (3) the Veteran’s contention from a June 2010 statement that his kidney problems were due to heavy lifting during service. 4. Review the opinion received and make sure it complies with this remand in all aspects. If not, return the opinion to the examiner for compliance with the remand instructions. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, Counsel 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.