Citation Nr: 21063976 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 11-05 421 DATE: October 18, 2021 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. REASONS FOR REMAND 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 claim for 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. In April 2020, the Board remanded the matter for further development. Specifically, the Board directed the RO to obtain authorization from the Veteran for any outstanding medical records relevant to the bilateral hearing loss and kidney claims; secure outstanding VA medical records dated since February 2017, to include Vista Imaging records; verify the Veteran's claimed exposure to chemicals while he was stationed aboard the USS Hull; and obtain a VA medical opinion as to the Veteran's service connection claim for a kidney disorder. Following the April 2020 Remand, the RO associated additional VA treatment records with the claims file. See CAPRI records uploaded April 2020, May 2020, and August 2021. Additionally, in July 2020, the Veteran underwent a kidney examination and medical opinions dated July 2020 and September 2021 were associated with the claims file. Also, an August 2021 VA Memorandum was associated with the claims file, noting that evidence was not found that supported the Veteran's claimed exposure to environmental toxins or substances. Relevant to the Veteran's service connection claim for a kidney disorder, the Board finds that the July 2020 and September 2021 opinions are inadequate as they do not substantially comply with the Board's April 2020 Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, further remand is required. Relevant to the Veteran's increased rating claim for bilateral hearing loss, the Board finds that further remand is necessary for an additional examination to determine the current severity of the Veteran's disability. 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. The Board finds that an addendum opinion is necessary to determine the nature and etiology of the Veteran's kidney disorder. Following the Board's April 2020 Remand, the Veteran underwent a Kidney Conditions (Nephrology) DBQ in July 2020. The examiner provided diagnoses of nephrolithiasis (kidney stones); cystic kidney disease; and staghorn calculi. The Veteran reported that he had a history of recurrent kidney stones going back to 2004; cystic kidney disease in 2008; recurrent proteinuria; and nephrolithotomy in 2017. The Veteran also had recurrent urinary tract infections as a result of the stones, and he also had a history of staghorn calculus in 2015. The Veteran reported that he had had kidney stones in 2019. The Veteran also stated that he had been on antibiotics multiple times. The examiner opined that it was less likely than not that the Veteran's kidney disorders were incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationed that there was no specific evidence gathered from the Veteran's history or cited in medical literature or the Veteran's medical records that his nephrolithiasis, staghorn calculus, or cystic kidney disease manifested during or was otherwise related to active service, to include chemical exposure. The examiner also opined that it was less likely than not that the Veteran's kidney disorders were proximately due to or the result of his service-connected condition. The examiner reasoned that there was no specific evidence gathered from the Veteran's history or cited in medical literature or the Veteran's medical records that showed that his nephrolithiasis, staghorn calculus, or cystic kidney disease were proximately due to or the result of his degenerative arthritis of the lumbar spine. The examiner noted that a baseline of severity could not be determined, noting again that there was no specific documentation regarding the specific severity of symptoms associated with the claimed kidney conditions prior to the diagnosis of the degenerative arthritis of the lumbar spine diagnosis and, therefore, a comparison could not accurately be made to determine whether aggravation occurred. The examiner further opined that it was less likely than not that the Veteran's kidney disorders were aggravated beyond the natural progression by his lumbar sine disorder. The examiner again reasoned that there was no specific evidence gathered from the Veteran's history or cited in medical literature or in the Veteran's medical records that showed that his currently diagnosed conditions related to his kidney disorders. In the Opinion Regarding Conflicting Medical Evidence section of the report, the examiner reiterated the Veteran's June 2010 statements and May 2017 statement. In assessing those statements, the examiner noted that the "PSOAS muscle and its origin is situated in the human anatomy, whereas it can cause obstructive issues with urinary flow of the kidneys ureters and bladder." The examiner further noted that "there is a chance it could cause recurring kidney stones." The examiner also stated that "the physician who noted this to the Veteran specializes in the physiology of the urinary system" and likely is an expert in the field, further noting that it was therefore at least as likely as not associated with issues surrounding the PSOAS condition. The examiner was then asked to explain the discrepancy between the portion of the report where he opined that the Veteran's kidney disorders were less likely than not related to his service-connected lumbar spine and the portion of the opinion where the examiner reported that it was as likely as not that the Veteran's kidney disorders were associated with issues surrounding the PSOAS muscle condition. In a September 2021 addendum opinion, the examiner stated that the two conditions were separate conditions, further noting that degenerative arthritis of the lumbar spine is a condition of the spine and PSOAS muscle condition is related to a muscle. The Board finds that the medical opinions of record relating to the Veteran's kidney disorders are inadequate. In the July 2020 medical opinion, the examiner summarily stated that no medical evidence or evidence gathered from the Veteran's history was found to support a kidney disorder in service, thereby failing to provide any rationale regarding a nexus between the Veteran's kidney disorder(s) and his military service. Similarly, the examiner provided the same inadequate rationale to support the medical opinion for secondary service connection. Additionally, while the examiner noted that all lay statements were considered, the examiner's rationale in the July 2020 opinion does not support this conclusion. More specifically, the examiner did not consider whether the Veteran's kidney problem(s) were due to heavy lifting in service, as instructed in the April 2020 Remand directives. Also, the Board notes that rationale as to the Veteran's statements that his doctor told him that his kidney problems resulted from an enlarged PSOAS muscle in his back is unclear. In the July 2020 medical opinion, the examiner opined that the Veteran's kidney disorders were less likely than not proximately due to or the result of his service-connected lumbar spine disability. However, in the remarks section, the examiner reported that it was at least as likely as not that the Veteran's kidney disorders were associated with issues surrounding the PSOAS muscle condition. Then, in the September 2021 addendum opinion, the examiner reasoned that the two conditions were separate conditions, noting that degenerative arthritis of the lumbar spine is a condition of the spine and that the PSOAS muscle condition is related to a muscle. Here, while the Board recognizes the examiner's explanation that the PSOAS muscle is a muscle, the interplay between the Veteran's service-connected lumbar spine disorder and the PSOAS muscle (a long muscle located in the back) and such possible relationship to his kidney disorder(s) remains unclear. As such, the opinion is deemed inadequate for adjudicating the Veteran's claim. On remand, another opinion must be obtained. As an additional matter, the Board notes that in an August 2021 Memorandum, the JSRRC Coordinator concluded that no evidence was found to support the Veteran's exposure to environmental toxins or substances and, thus, a link that those chemicals would have caused the Veteran's problems could not be established. Relevant to the Veteran's claim that his kidney disorders(s) were caused by his exposure to chemicals, the examiner did not address the Veteran's lay statements or testimony in which he stated that he was exposed specifically to trichloroethylene. On remand, the examiner should consider such lay statements, as well as the August 2021 VA Memorandum. 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. The Board finds an additional examination is needed to obtain the current severity of the Veteran's bilateral hearing loss. The record reflects that the Veteran last underwent a VA examination in July 2016. Remand is necessary to determine the current severity of the Veteran's disability. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The matters are REMANDED for the following action: 1. KIDNEY DISORDER: Obtain a VA medical opinion from a nephrologist or other 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 his claimed exposure to chemicals? In doing so, the examiner is asked to address the Veteran's hearing testimony, as well as the August 2021 VA Memorandum. (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 must address each of the following three statements: (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. The examiner is further directed to explain the relationship, if any, between the Veteran's service-connected degenerative arthritis of the lumbar spine and his PSOAS muscle. 2. BILATERAL HEARING LOSS: Provide the Veteran with a VA examination to address the current severity and manifestations of his bilateral hearing loss disability. All indicated tests should be conducted. The electronic claims file must be made available to the examiner. The examiner must identify the auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC speech discrimination test should also be administered to determine speech recognition scores. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.