Citation Nr: 21076464 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 11-02 168 DATE: December 23, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for kidney stones is reopened. REMANDED Entitlement to service connection for kidney stones, to include as due to service-connected hypertension and/or prostate cancer is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial disability rating in excess of 10 percent for chronic sinusitis is remanded. FINDING OF FACT 1. The June 2005 rating decision denied the Veteran's original claim for entitlement to service connection for kidney stones; the Veteran did not timely appeal the denial; and new and material evidence was not received as to that issue within the one-year appeal period following issuance of the June 2005 rating decision. 2. Evidence received since the June 2005 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for kidney stones. CONCLUSION OF LAW 1. The June 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence having been received, the claim for entitlement to service connection for kidney stones is reopened. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1964 to December 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009, and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran testified at a hearing by a Veterans Law Judge that has since retired. A transcript of the hearing is associated with the record. The Veteran was afforded an opportunity to have a second hearing. In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. New and material evidence having been received, the claim for entitlement to service connection for kidney stones is reopened The Veteran seeks to reopen his claim for entitlement to service connection for kidney stones, which was previously denied in the June 2005 rating decision. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In this case, the Veteran submitted an original claim for entitlement to service connection for kidney stones in April 2004. The AOJ denied the Veteran's claim in the June 2005 rating decision. The AOJ explained that there was no evidence of kidney stones in service or within the one-year post-service presumptive period. The examiner also explained that kidney stones are not associated with asbestos exposure. The Veteran did not submit a timely notice of disagreement as to the June 2005 rating decision, and new and material evidence as to the issue was not received within the one-year appeal period following issuance of the June 2005 rating decision. The Board acknowledges that in August 2006, the Veteran submitted a notice of disagreement, but this is not within one year of the issuance of the June 2005 rating decision. As such, the Veteran did not complete a timely appeal of the June 2005 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. The evidence associated with the record since issuance of the final June 2005 rating decision includes, the Veteran's submission of symptoms and diagnosis of the Veteran's medical condition, the Veteran's statements that his kidney stones are related to Agent Orange exposure during service, and testimony from two Board hearings. In addition, since the Veteran filed his claim for service connection for kidney stones, he has become service connected for hypertension and prostate cancer, and he has stated that these conditions were related throughout the appeal period. The Board finds that the evidence is new because it was not previously considered by VA. It is also material because it puts forth new information, and circumstances have changed, that raises a reasonable possibility of substantiating the claim for entitlement to service connection for kidney stones. See Shade, 24 Vet. App. 110. Therefore, the Board concludes that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for kidney stones, and the claim is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for kidney stones, to include as due to service-connected hypertension and/or prostate cancer is remanded. The Veteran contends that his kidney stones are related to service, and was diagnosed with kidney stones, hypertension and prostate cancer around the same time period, so believes there is an association between these conditions. The Veteran acknowledges that he did not have kidney stones during service, or within a year after separation. The Veteran also contends that he was exposed to Agent Orange, which has since been conceded. In view of the foregoing, the Board concludes that the threshold for provision of a VA examination and opinion have been met and that the appeal must be remanded so that the Veteran may be afforded the opportunity to report for such an examination. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for right ear hearing loss is remanded. The Veteran contends that his current right hearing loss is related to in-service exposure to noise. In the August 2020 rating decision, the Veteran was awarded service connection for hearing loss in the left ear. The AOJ indicated that service connection was warranted because the Veteran had military acoustic trauma as evidenced by significant puretone threshold shift in-service and has been linked to acoustic trauma. However, at the time of this award the Veteran's right ear hearing loss did not meet the definition of hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. However, in the October 2021 Board hearing, the Veteran testified that his hearing has worsened. Thus, the Board finds that Veteran should be afforded the opportunity to report for an examination, and a remand is necessary. 3. Entitlement to an initial disability rating in excess of 10 percent for chronic sinusitis is remanded. During the October 2021 Board hearing, the Veteran testified that his chronic sinusitis has worsened. Specifically, the Veteran contends that his disability picture has not been accurately captured. The Board finds that the Veteran should be afforded the opportunity to report for an examination to determine the current severity of the Veteran sinusitis prior to adjudicating this claim. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology for the Veteran's kidney stones. The examiner must review the claims file and a copy of this remand. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's kidney stones are related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that those disabilities are not on the list of diseases that are presumptively associated with exposure to herbicide agents. (b.) Whether the Veteran's kidney stones are at least as likely as not (50 percent or greater probability) proximately due to the Veteran's service-connected hypertension or prostate cancer. (c.) Whether the Veteran's kidney stones are at least as likely as not (50 percent or greater probability) aggravated beyond their natural progression by the Veteran's service-connected hypertension or prostate cancer. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of the Veteran's right ear hearing loss. (An opinion as to service-connection is not necessary as the only remaining factor in determining service connection is severity). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of the Veteran's service-connected sinusitis. 4. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.