Citation Nr: 21076019 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-14 428 DATE: December 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for Meniere's disease (vertigo) is dismissed. Entitlement for service connection for hypertension is denied. Entitlement for service connection for kidney disease is denied. FINDINGS OF FACT 1. Prior to the promulgation of a Board decision, the Veteran withdrew on the record, his appeal of the issue of entitlement to service connection for hearing loss, tinnitus, and vertigo and has continued to demonstrate abandonment of the issues. 2. The Veteran's hypertension is not related to service and did not manifest within one year of separation from service. 3. The Veteran's kidney disease is not related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal on the issue of entitlement to service connection for hearing loss, tinnitus, and vertigo are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for a kidney disease are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January and November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2019. The issues of entitlement to service connection for a lung disease, hypertension, and kidney disease were denied. The issues of entitlement to service connection for hearing loss, tinnitus, and vertigo were dismissed. The Veteran appealed the January 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In a March 2020 order, the CAVC granted a Joint Motion for Partial Remand (JMPR), remanding the hearing loss, tinnitus, and vertigo dismissal claims and vacating and remanding the hypertension and kidney claims. The specific findings will be discussed below. Dismissal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative by telling the Board of the decision to withdraw on the record at a Board personal hearing. Id. In the March 2020 CAVC order remanding the hearing loss, tinnitus, and vertigo dismissal claims, the JMPR found: the Board did not acknowledge the specific language used by Appellant and/or his representative at the Board hearing, explain why it found that language to be clear and unambiguous, or discuss whether a withdrawal based on a future award of benefits could satisfy the requirement that a verbal withdrawal be done "with a full understanding of the consequences" and, if so, whether it did in this case. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1013-15 (Fed. Cir. 2018). In August 2020 the Veteran's representative submitted a Written Brief Presentation identifying the issues on appeal as entitlement to service connection for hypertension and kidney disease only. In September 2020 the Board sent correspondence to the Veteran in an effort to schedule a hearing on the previously dismissed issues. In October 2020 the Veteran responded with a request for a video teleconference hearing. A hearing was scheduled; however, the Veteran cancelled the hearing with instructions to dismiss the bilateral hearing loss, tinnitus, and Meniere's disease. In August 2021 the Veteran's representative submitted a second Written Brief Presentation identifying the issues on appeal as entitlement to service connection for hypertension and kidney disease only. In October 2021 the Board sent correspondence again requesting clarification of which, if any, issues were being withdrawn. No response has been received. The Board has made several attempts to receive arguments in favor of the previously dismissed bilateral hearing loss, tinnitus, and meniere disease to no avail. In fact, the Veteran requested cancellation of the Board hearing and dismissal of the claims. Subsequently the Veteran's Representative's August 2021 Written Brief Presentation further reiterates the desire to withdraw the claims. The Board finds these actions demonstrate a clear and unambiguous intention to withdraw the claims because the Veteran had ample opportunities to advance arguments in favor of the dismissed claims and has consistently shown an intention to abandon the claims. Therefore, the issues of entitlement to service connection for hearing loss, tinnitus, and meniere disease are dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement for service connection for hypertension 2. Entitlement for service connection for kidney disease The Veteran contends his current kidney disease is the result of an injury in service, specifically lead exposure. The Veteran also contends his current hypertension is secondary to his kidney disease and a result of lead exposure. However, the Board finds that the preponderance of the evidence is against the Veteran's claim. During the June 2018 Board hearing, the Veteran provided testimony indicating he painted an entire building using lead paint with no protection for his detachment while in the army and he believes this exposure lead to his hypertension and kidney disease. Service treatment records from June 1972 do not reflect any complaints, treatment, symptoms, or diagnosis for hypertension or any kidney disease. According to private treatment records, the Veteran has been treated for hypertension since 2001 and kidney disease since 2009. The records from Dr. B from 2001-2009 reflect treatment for hypertension. In February 2005, the Veteran reported a family history of hypertension to his doctor. Additionally, during the Veteran's treatment with Dr. B., he was given two echocardiogram's (Echo). Results from the June 2005 echo report revealed mild tricuspid regurgitation with evidence of pulmonary hypertension. Results from the February 2009 echo revealed concentric left ventricular hypertrophy with normal function and ejection fraction of about 65 percent with diastolic dysfunction. According to medical records from Alleghany Medical Services reports in 2010, the Veteran was treated for hypertension, however there were no opinions relating the Veteran's hypertension to kidney disease or lead exposure. The private treatment records beginning in 2007 reflect treatment for chronic kidney disease. In February 2009, the Veteran was admitted to the hospital with chest pains and chills. The physician gave the Veteran an ultrasound for his kidneys. The results of the ultrasound revealed the Veteran had a nonobstructive right kidney stone and a cyst on his left kidney. The physician diagnosed the Veteran with right kidney stone and discharged him. A March 2009 cat scan of the Veteran's kidneys revealed an impression of nephrolithiasis with 2.5 mm of nonobstructive calculus in the right kidney. In August of 2011, the Veteran was admitted to the hospital for shortness of breath and swelling. The physician noted the Veteran's past medical history included chronic kidney disease and hypertension. The Veteran was discharged with several diagnoses including chronic kidney disease and hypertension. In the copious private treatment records, there are no competent medical opinions providing a connection between an in-service injury, the current diagnosis, and a nexus to lead exposure while in the army for both the hypertension and kidney disease. The Board reviewed the Veteran's "buddy" statement from the Veteran's cousin (Cousin), dated for September 2013. The Cousin discusses his service in the Army while he was stationed in Fort Bragg, NC from 1990-1994. He indicated, in his supervisory position, he was assigned to run a work crew assigned to paint the 46 support group buildings. He was instructed to scrape the old paint chips off the World War II buildings because they contained lead. While the Cousin is competent to provide this statement, the Cousin is not competent of give a nexus opinion. Also, the record does not support the assertion that these were the same buildings the Veteran painted. Therefore, this evidence is not probative for the Veteran's claim. The only lead exposure and nexus indication for the Veteran, is the Veteran's lay testimony. In the March 2020 CAVC order remanding the hypertension and kidney claims, the JMPR found: In its decision, the Board acknowledged Appellant's statements that he painted during service with lead-based paint and that his exposure to lead resulted in his current hypertension and kidney disease. (R. at 14 (Board decision at 10) (citing R. at 50-51 (41-53) (June 2018 Board hearing transcript)). The Board dismissed Appellant's statements solely because his "service personnel records do not confirm lead exposure nor does the Veteran's duties, as a draftsman include painting." (R. at 16 (Board decision at 12)). In doing so, the Board provided no foundation for its dismissal of the lay testimony based upon a lack of corroborating evidence, as it was required to do. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Accordingly, remand is warranted for the Board to adequately address Appellant's lay statements. After doing so, the Board should then address whether Appellant should be provided with a VA examination with respect to these issues under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), as the Board found that it was not obligated to provide an examination based on a lack of competent and credible evidence confirming Appellant's exposure to lead and asbestos. In this case the Board finds the Veteran's June 2018 Board hearing testimony indicating he painted an entire building using lead paint with no protection for his detachment while in the army plausible. However, the Veteran is not competent to opine on whether his kidney and hypertension disease is the result of lead exposure. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). In this case the record is devoid of any competent and credible medical evidence supporting the Veteran's claim and the lay testimony alone is insufficient to establish nexus for service connection. See Jandreau, 492 F.3d at 1376-77. The Board reviewed the article, submitted by the Veteran in July of 2018, on the regulatory review of lead in construction. The article fails to provide competent and credible medical evidence to indicate the current disabilities are related to lead poisoning. The article provides general definitions, exposure routes, and possible health effects of lead poisoning. The article fails to address the Veteran's specific disabilities and how they are related to lead exposure. The article also fails to correlate the length of exposure required for any disease; specifically, the current diseases the Veteran has. The article is too broad and speculative to provide any indication that in-service lead poisoning is in any way related to the Veteran's disabilities. Although the Board finds the Veteran's painting allegations at least plausible, a VA examination is not warranted. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The first element of the McLendon analysis, competent evidence of a current disability, is satisfied by competent and credible medical evidence. The Veteran has been treated for hypertension since 2001 and kidney disease since 2009. The second prong, which requires evidence of an in-service event, has also been met o the extent it is plausible that the Veteran's painting duties may have resulted in some level of lead exposure in fumes. However, the third prong has not been met as there is not an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability. McLendon, 20 Vet. App. 79 (2006). Although, medically competent evidence is not necessarily required to indicate that the current disability may be associated with service, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice under the circumstances as this is a complex medical or scientific question. In this case the Veteran has only provided a conclusory generalized statement relating his disabilities to in-service lead exposure. As noted above the article submitted in July of 2018 provides general definitions, exposure routes, and possible health effects of lead poisoning. The article does not address the Veteran's specific disabilities and how they are related to lead exposure. Also, it does not address the length of exposure required for any disease, as the Veteran's testimony alleges an isolated incident of exposure while painting a building. Again, the Veteran is not competent to relate his current kidney and hypertension disease to lead poisoning. See Jandreau, 492 F.3d at 1376-77. As kidney disease is not shown to be related to service, the Veteran's claim of secondary service connection for hypertension must fail. See 38 C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Additionally, the evidence does not reveal the Veteran's hypertension diagnosis developed while he was in service or to a compensable degree within a year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran was not treated for hypertension until 2001. Therefore, a preponderance of the evidence is against a finding that hypertension and kidney disease began during service, was the result of in-service lead exposure, or is related to service in any other way. Accordingly, service connection for hypertension and chronic kidney disease due to lead exposure is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.