Citation Nr: 21069787 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-53 143A DATE: November 19, 2021 ORDER The appeal to reopen the claim of service connection for chronic kidney disease is granted. The appeal to reopen the claim of service connection for hypertension is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for chronic kidney disease is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. An unappealed October 2009 rating decision denied service connection for chronic kidney disease essentially on the basis that the Veteran's kidney disease was not caused by his service. 2. Evidence received since the October 2009 rating decision includes a private opinion relating the Veteran's kidney disease to exposure to trichloroethylene (TCE) in service. Such evidence relates to an unestablished fact necessary to substantiate the claim of service connection for kidney disease; and raises a reasonable possibility of substantiating the claim. 3. An unappealed October 2009 rating decision denied service connection for hypertension on the basis that the Veteran's hypertension was not diagnosed and manifested within one year following the Veteran's release from service. 4. Evidence received since the October 2009 rating decision includes the Veteran's testimony at the June 2021 video conference hearing that he was diagnosed by a private physician with hypertension approximately six or seven months after service. Such testimony relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension; and raises a reasonable possibility of substantiating the claim. 5. The Veteran's tinnitus is reasonably shown to have begun in service and to have persisted since that time. 6. The Veteran's chronic kidney disease is reasonably shown to be caused by exposure to TCE while in service. 7. The Veteran is not shown to have a diagnosis of PTSD. 8. The Veteran is not shown to have a left ear hearing loss disability for VA purposes. 9. A right ear hearing loss disability is not shown to have been manifested in service or within a year following the Veteran's separation from service; post service continuity of right ear hearing loss disability is not shown; and a right ear hearing loss disability is not otherwise shown to be related to the Veteran's service, to include as due to exposure to noise trauma therein. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a kidney disease may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 2. New and material evidence has been received, and the claim of service connection for hypertension may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for chronic kidney disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1970 to December 1973, with additional service in the Georgia National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021 a video conference hearing was held before the undersigned; a transcript is in the record. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The appeal to reopen the claim of service connection for chronic kidney disease Service connection for chronic kidney disease was previously denied by an unappealed October 2009 rating decision on the basis that the Veteran's chronic kidney disease was not related to exposure to herbicides (and service). The Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. Accordingly, new and material evidence to reopen the claim is required before the claim can be considered de novo. 38 U.S.C. §§ 7105, 5108. Considering the basis for the prior denial of the claim, for evidence to relate to an unestablished fact necessary to substantiate this claim and be new and material it would have to tend to show that the Veteran's chronic kidney disease may be etiologically related to his service. Evidence added since the October 2009 rating decision includes August 2021 correspondence from the Veteran's private physician which noted that TCE was a known carcinogen and related the Veteran's renal cancer to his exposure to TCE exposure while in service. Such evidence constitutes new evidence that pertains to a previously unestablished fact necessary to substantiate the claim of service connection for kidney disease; considering the "low threshold" standard for reopening endorsed by the Court in Shade, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received, and that the claim of service connection for kidney disease may be reopened. 2. The appeal to reopen the claim of service connection for hypertension Service connection for hypertension was previously denied by an unappealed October 2009 rating decision on the basis that the Veteran's hypertension was not first diagnosed and manifested to a compensable degree within one year following service. The Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. Accordingly, new and material evidence to reopen the claim is required before the claim can be considered de novo. 38 U.S.C. §§ 7105, 5108. Considering the basis for the prior denial of the claim, for evidence to relate to an unestablished fact necessary to substantiate this claim and be new and material it would have to tend to show that the Veteran's hypertension was first diagnosed and manifested to a compensable degree within one year or may be otherwise etiologically related to his service. Evidence added since the October 2009 rating decision includes the Veteran's June 2021 testimony that he had a medical incident at work following service and was diagnosed with hypertension approximately six or seven months after service. Such evidence constitutes new evidence that pertains to a previously unestablished fact necessary to substantiate the claim of service connection for hypertension; considering the "low threshold" standard for reopening endorsed by the Court in Shade, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received, and that the claim of service connection for hypertension may be reopened. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Certain chronic diseases (to include SNHL and tinnitus as an organic disease of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 3. Entitlement to service connection for tinnitus. Service treatment records (STRs) include the results of physical examinations in July 1973 and April 1976. In both examinations, hearing acuity tests were normal, and the Veteran denied any hearing loss with no mention of tinnitus. However, there were records of an excision of a hemangioma of the left cheek in June 1973. On March 2018 hearing loss and tinnitus DBQ, the Veteran reported intermittent tinnitus primarily in the left ear which he first noticed following surgery on his cheek while in service. In January 2021, the Veteran submitted an opinion from a physician who diagnosed tinnitus and attributed the cause to noise exposure based on a summary of the Veteran's statements to her and a claimed review of unspecified "service and/or civilian records." There is no mention of an examination. The physician listed an address in Puerto Rico distant from the Veteran's residence in the continental United States. The physician cited medical articles for the principle that noise exposure can cause tinnitus. At the June 2021 video conference hearing, the Veteran testified that he keeps cotton in his ears to keep from being overwhelmed by the sound in his ears. The Veteran also testified that he had hemangiomas removed from his jaw in service (notably the Veteran is service connected for status post removal of hemangioma of the left buccal mucosa). Tinnitus is a disability the existence of which is established by self-reports (by the person experiencing it); it is generally incapable of clinical confirmation. As the Veteran alleges, he has tinnitus, and there is no evidence to the contrary, it is assumed that he has such disability (the evidence does not suggest otherwise). The Veteran has reported onset of tinnitus in service and experiencing persistent intermittent tinnitus since separation from service. Specifically, on examination in March 2018, the Veteran stated that he began noticing tinnitus (primarily in the left ear) after in-service surgery on the left cheek. As noted above, the Veteran is already service connected for residuals of left cheek surgery in service. The Board finds there is insufficient evidence to challenge his reports of beginning to experience tinnitus following such in-service surgery and therefore finds the reports to be credible. Considering the foregoing, the Board finds it reasonably shown that the Veteran's tinnitus began in service and has persisted since that time. The criteria for establishing service connection for tinnitus, under the provisions of 38 C.F.R. § 3.303 (b) are met. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for chronic kidney disease. Service treatment records including the two physical examinations in July 1973 and April 1976 are silent for any kidney dysfunction or abnormality. At the June 2021 video conference hearing, the Veteran testified that he was exposed to Agent Orange in Thailand and used tetrachloroethylene (TCE) to clean the guns and parts of the guns on aircraft. He testified that protective equipment when handling and using TCE was not provided and stated that he breathed in fumes daily while working in the gun shop. He stated he was diagnosed with kidney disease in 2009. In August 2021 correspondence, the Veteran submitted medical literature from the New Jersey Department of Health website on the hazards of exposure to TCE. In August 2021 correspondence, the Veteran's private physician opined that the Veteran's renal cancer was as likely as not caused by chemical exposure while on active duty in the U.S. Air Force. Specifically, the private physician noted the Veteran was exposed to TCE and noted that TCE is a known human carcinogen with adverse effects on the liver, kidneys, brain and immune system. It is not in dispute that the Veteran has undergone treatment for renal cancer. The Veteran has not received an examination from VA with respect to his claim. However, in support of his claim the Veteran has offered his testimony, medical literature, and a private medical opinion. In his June 2021 video conference hearing the Veteran testified that he was exposed to TCE while in service and indicated experiencing side effects from such exposure (namely having to go outside immediately after breathing in fumes). Medical literature from the New Jersey Department of Health outlined side effects of exposure to TCE. Lastly, the August 2021 medical opinion was in support of the Veteran's claim that it was as likely as not that the Veteran's renal cancer was caused by chemical exposure while in service. This evidence is not contradicted and in totality is in support of the Veteran's claim. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for chronic kidney disease is warranted. 5. Entitlement to service connection for PTSD. Various psychological/mental health assessment within the Veteran's treatment records not no history of depression/suicide/homicidal attempts or hallucinations. The Veteran's PTSD screenings tests were negative. See CAPRI receipt date March 30, 2018. Although on rare occasions, the Veteran provided a mild response to questions about depression, the majority of screenings for depression before and after these occasions were negative. Clinicians noted negative symptoms on examination and there were no diagnoses or treatment for depression or any other mental health disorder. At the June 2021 video conference hearing, the Veteran testified that he has not been diagnosed with PTSD and has not sought mental health treatment. He testified that he has trouble sleeping. Initially, the Board notes that at the June 2021 video conference hearing the Veteran testified that he applied for and is in receipt of Social Security Disability benefits. Notably, VA is required to obtain SSA records, if pertinent to a VA claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). However, the Veteran has testified that he has not received treatment for any mental health condition. Accordingly, there is nothing to suggest that the Veteran's treatment records related to his claim for Social Security disability would be pertinent to his claim of service connection for PTSD. The record does not show a diagnosis of PTSD. The treatment records demonstrate negative PTSD screenings. The threshold question in this matter is then whether there is sufficient evidence to trigger VA's duty to assist by providing an examination to determine whether he has such diagnosis. A VA examination is necessary where there is (i) competent evidence of a current disability (ii) an in-service injury or event (iii) the disability may be associated with service and (iv) there is insufficient medical evidence to decide on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has considered whether an examination to secure a medical opinion regarding the etiology of the Veteran's alleged PTSD but determined that without evidence of a current psychiatric disability, and without evidence that the Veteran's current symptom of difficulty sleeping may be etiologically related to the Veteran's service, even the low threshold standard for determining when an examination or opinion is necessary endorsed in McLendon is not met. Accordingly, as the record is devoid of any competent evidence linking an allegation of PTSD to the Veteran's service, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. 6. Entitlement to service connection for left ear hearing loss. Hearing loss disability is defined by regulation (38 C.F.R. § 3.385) and must be established by official audiometry specified in. 38 C.F.R. § 4.85. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On March 2018 hearing loss DBQ left ear puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 LEFT 20 25 30 30 20 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. At the June 2021 video conference hearing the Veteran testified that he was not being treated for a hearing loss disability. The threshold matter for consideration in this matter is whether the Veteran has a left ear hearing loss disability. As noted above, hearing loss disability is defined by regulation (38 C.F.R. § 3.385) and must be established by official audiometry specified in. 38 C.F.R. § 4.85. The above audiometry does not show a hearing loss disability in the left ear (as defined in 38 C.F.R. § 3.385). The Veteran has not presented any evidence to the contrary. As no audiometry in the record shows that he has a left ear hearing loss disability that meets the definition in 38 C.F.R. § 3.385, he has not met the threshold legal requirement for substantiating a claim of service connection for left ear hearing loss and has not presented a valid claim of service connection for such disability. Accordingly, the appeal in this matter must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 7. Entitlement to service connection for right ear hearing loss. On July 1973 report of medical history, the Veteran reported that he did not have hearing loss. On July 1973 report of medical examination, the Veteran's ears were normal. Right ear puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 20 On April 1976 report of medical examination (Georgia Army National Guard enlistment), the Veteran's ears were normal. Right ear puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 15 On April 1976 report of medical history, the Veteran reported no history of hearing loss. On March 2018 hearing loss DBQ, right ear puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 30 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The clinician opined that it was less likely than not that the Veteran's right ear hearing loss was related to service. The clinician noted no evidence that the Veteran sustained noise injuries in service, and that the Veteran did not experience hearing loss until many years after service (noting the 2006 Institute of Medicine study). On June 2021 video conference hearing the Veteran testified that he noticed ringing in his ears while in service. It is not in dispute that the Veteran has right ear hearing loss for VA purposes (as such has been shown by official audiometry). His MOS was a weapons mechanic and had a high probability of noise exposure. What remains necessary to substantiate his claim of service connection for right ear hearing loss is competent medical evidence that his current right ear hearing loss is related to his service/noise trauma therein. While the Veteran may be competent to report a perception of a reduction of hearing acuity, he is not competent to establish by his accounts of remote perceptions that he had continuity of a hearing loss disability post-service; under governing regulation (38 C.F.R. § 3.385) hearing loss disability must be established by specified audiometry. Consequently, service connection for a right ear hearing loss disability based on continuity is not warranted. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d. 1331, 1338-40 (Fed. Cir. 2013). Service connection for a right ear hearing loss disability may still be established by competent evidence that the Veteran's hearing loss, first documented many years after service is etiologically related to his service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). He has presented no such evidence. Whether a current hearing loss disability may, in the absence of evidence of onset in service and continuity thereafter be related to remote service/noise trauma therein is a medical question. The Veteran is a layperson, and his own opinion in the matter is not competent evidence; he does not cite to supporting medical opinion or treatise evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The most probative (medical opinion) in the record comes from the March 2018 examination which found it less likely than not that the Veteran's right ear hearing loss disability was related to service. The Board finds that in the absence of competent medical evidence to the contrary, such medical opinion is persuasive. The weight of competent medical evidence is against the claim of service connection for right ear hearing loss. Accordingly, the appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension Initially, as noted above, the record reflects that the Veteran applied for and is in receipt of Social Security Disability benefits. VA is required to obtain SSA records, if pertinent to a VA claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As noted above, in June 2021 the Veteran testified that he had a medical incident at work following service and was diagnosed with hypertension approximately six or seven months after service. Notably, hypertension is considered a chronic disease. See 38 C.F.R. § 3.309(a). As such, service connection is presumed if it became manifest to a degree of 10 percent or more within one year of service. See 38 C.F.R. § 3.307(a). It is not in dispute that the Veteran currently has hypertension. The Veteran has testified that he was diagnosed with hypertension within one year of separation from service. Currently, the earliest notation of hypertension is seen in a January 2009 nephrology consultation record notes a history of hypertension for 30 years. Such record does not indicate that hypertension was diagnosed within one year of separation of service (separation in December 1973). However, it does suggest an extended history of hypertension. Whether or not hypertension is related to service (or was diagnosed to a degree of 10 percent or more within one year) is a medical question. The Veteran also raised the issue of exposure to the designated herbicide agents in Thailand, but this contention has not been addressed by the RO. Accordingly, a medical opinion which addresses the etiology of the Veteran's hypertension is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The AOJ should secure from SSA a copy of any SSA determination on a claim for SSA disability benefits and copies of the complete medical records considered in connection with such determination. If there are no SSA records available, it should be so noted in the record with explanation (e.g., that such records were not created, or have been lost or destroyed). 2. Ask the Veteran to identify all providers (VA and private) of evaluations and treatment he has received for hypertension and to submit authorizations for VA to obtain complete pertinent clinical records from all private providers identified. Secure all such records from all providers identified (specifically including any records of VA evaluations or treatment that are not already in the claims file). 3. Determine whether the Veteran's hearing testimony and all other records establish exposure to the designated herbicide agents while service in Thailand. 4. When the development requested above is completed, arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the etiology of his hypertension. [If an examination of the Veteran is deemed necessary for any opinion sought, such should be arranged.] The consulting clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension was incurred in service (or became manifest to a degree of 10 percent or more within one year of separation from service)? If the Veteran has been found to have been exposed to the designated herbicide agents in Thailand, was this the cause for his hypertension? (b.) If the Veteran's hypertension is found to have not been incurred or related to service, identify the etiology for the hypertension that is more likely (and explain why that is so). The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.