Citation Nr: 21008488 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-20 886 DATE: February 17, 2021 ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for kidney disease/kidney cancer with metastasis, to include as due to herbicide exposure or secondary to hypertension, is remanded. Entitlement to service connection for residuals of loss of a kidney, to include as due to herbicide exposure, or secondary hypertension, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record demonstrates that the Veteran’s bilateral hearing loss disability is related to his in-service noise exposure. 2. The competent and credible evidence of record demonstrates that the Veteran’s tinnitus is related to his now service-connected bilateral hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103A, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus disability have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in a February 2021 virtual hearing. The Veteran served on active duty in the United States Air Force from September 1966 to September 1970. Service Connection Bilateral hearing loss; Tinnitus The Veteran attributes his bilateral hearing loss disability and tinnitus to his in-service exposure while he served in the Republic of Vietnam. He provided competent, credible testimony stating he had no pre-existing conditions and describing that the onset of his hearing loss symptoms occurred while in service. The Board acknowledges that the Veteran is competent to report in-service noise exposure, and that he experienced hearing difficulties and ringing in his ears during active duty. He is also competent to report first noticing hearing problems while in service, and that he experienced hearing problems and tinnitus since active duty. Furthermore, the Board finds his reports of in-service noise exposure credible as such are consistent with the type and circumstances of his military service. 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran’s service). Accordingly, the Board finds that the Veteran’s lay statements concerning his exposure to noise during his military service, and his lay statements concerning the onset, nature, and progression of his hearing problems and tinnitus are both competent and credible lay evidence of such. The Veteran was afforded a VA audiological examination in May 2016 and it shows a hearing loss disability for VA purposes. The first element of service connection for bilateral hearing loss, a current disability, is satisfied. 38 C.F.R. § 3.385. Moreover, the May 2016 VA examination confirmed a diagnosis of a tinnitus disability. Turning to the question of whether there is nexus, or link, between the Veteran’s bilateral hearing loss disability and his in-service noise exposure the Board finds that there are competent, credible medical records and testimony in evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds that there is sufficient competent and credible lay evidence to establish that there is a likely continuity of symptoms from the time of service until the present regarding his hearing loss. See C.F.R. § 3.303(b). The Board finds that although the Veteran’s enlistment examination noted impairment of hearing, he was not found to have a hearing loss disability for VA purposes. The Board finds that the Veteran did not have a hearing loss defect noted at service, nor is there clear and unmistakable evidence that his hearing loss disability preexisted his military service. Therefore, he is presumed sound. Further, there is a September 1967 audiogram that illustrates improved hearing when comparing it to the audiogram at enlistment. The Board recognizes that the May 2016 VA examiner provided a negative opinion regarding the Veteran’s bilateral hearing loss. However, the examiner relied on the false premise that the Veteran’s bilateral hearing loss disability preexisted service. As such, the Board does not find this opinion to be of high probative value. The Veteran has provided competent, credible testimony describing the onset of his hearing loss and how it has continued to present. The audiogram from the May 2016 VA examination clearly demonstrates hearing loss. In sum, the Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of hearing loss since his military service, and the Board finds no reason to question the veracity of such statements. See Charles, supra; Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). These statements, when viewed in relation to his in-service noise exposure, are entitled to significant probative weight, and thus, are sufficient to establish the presence of hearing loss, and a likely continuity of symptomatology from service to the present. 38 C.F.R. § 3.303(b); Walker, supra. Therefore, the Board finds that the Veteran’s in-service noise exposure did cause his current bilateral hearing loss. The May 2016 VA examiner opined that the Veteran’s tinnitus is due to his hearing loss. As his hearing loss is now service connected, service connection is warranted for tinnitus on a secondary basis. REASONS FOR REMAND The Board’s review of the record reveals that further development is needed before the remaining issues on appeal can be decided. Kidney disease/kidney cancer with metastasis; Residuals of loss of a kidney The Veteran contends that his kidney disabilities are related to his exposure to Agent Orange while in service. As stated above, exposure to herbicide agents while in service has been conceded. The record shows a 1998 removal of the kidney, a 1999 diagnosis of neoplasm of the kidney, a 2013 diagnosis of inherited kidney disorder as well as current residual conditions or complications due to the neoplasm or its treatment. The residuals were described as chronic kidney insufficiency likely secondary to status-post left nephrectomy and uncontrolled hypertension. See August 2015 Kidney Conditions VA Disability Benefits Questionnaire. Kidney cancer, nor any of the kidney disabilities listed above are enumerated diseases associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not applicable. Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). There is no medical opinion of record regarding the etiology of the Veteran’s kidney disabilities. As such a remand is required to determine the nature and etiology these disabilities, to include consideration of the Veteran’s presumed exposure to Agent Orange or as secondary to hypertension. The Board recognizes that the Veteran has not been afforded a VA examination for his kidney disabilities at any time within the appeal period. Therefore, on remand the Veteran should be afforded an examination. Hypertension The record shows a current diagnosis of hypertension. See VA medical record dated April 2016. The Veteran contends that his hypertension was caused by his in-service exposure to Agent Orange. Exposure to herbicide agent while in service is presumed. The National Academies of Sciences, Engineering, and Medicine (NAS) found “sufficient evidence” of an association between hypertension and exposure to herbicides including Agent Orange. There is no medical opinion of record regarding the etiology of the Veteran’s hypertension. As such a remand is required to determine the nature and etiology of his hypertension, to include consideration of the Veteran’s presumed exposure to Agent Orange. The Board recognizes that the Veteran has not been afforded a VA examination for his hypertension at any time within the appeal period. Therefore, on remand the Veteran should be afforded an examination. Lastly, on review of the record it appears that the most up to date VA treatment records are dated August 2016. Therefore, on remand, efforts should be made to obtain all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for kidney disease, residuals of kidney disease, residuals of kidney removal, kidney cancer with metastasis, and hypertension. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. The AOJ should schedule the Veteran for an appropriate VA examination, to include a virtual examination if deemed most appropriate, to confirm all current kidney disabilities and provide opinions as to their etiology. The examiner must be provided with a copy of the claims file, to include all medical records, and this Remand to assist in understanding the questions presented in this matter. The examiner should indicate review of all these records. The examiner should identify all current kidney disabilities found at any time during the appeal period, to include residuals of kidney cancer and kidney removal (from January 2016). The examiner should provide opinions as to the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s kidney cancer with metastasis, removal of the kidney, and any other diagnosed kidney disabilities manifested during active service; manifested within one year of his September 1970 separation; or is otherwise related to an event, injury, or disease incurred during active service, to include his presumed exposure to herbicides (Agent Orange) in Vietnam. (b.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s kidney disabilities are proximately due to or caused by the Veteran’s hypertension. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s kidney disabilities were aggravated (worsened in severity beyond a natural progression) by his hypertension. For purposes of this opinion, the examiner is to presume that the Veteran was exposed to herbicide agents in service. The examiner should not rely solely on the fact that VA regulations do not recognize the Veteran’s kidney cancer as being presumptively related to exposure to herbicide agents. In other words, there should be a more complete medical explanation of why medical evidence does not show Agent Orange is a risk factor for this Veteran’s kidney disabilities. The examiner is asked to specifically consider the article submitted February 2021 that discussed the relation between pesticide and risk of renal cell carcinoma. The examiner is asked to provide a detailed rationale for any opinions reached. 3. The AOJ should schedule the Veteran for an appropriate VA examination, to include a virtual examination if deemed most appropriate, to obtain an opinion as to the nature and etiology of the Veteran’s hypertension. The examiner should provide opinions as to the following: Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran’s hypertension manifested during active service; manifested within one year of his September 1970 separation; or is otherwise related to an event, injury, or disease incurred during active service, to include his presumed exposure to herbicides (Agent Orange) in Vietnam. For purposes of this opinion, the examiner is to presume that the Veteran was exposed to Agent Orange while in service. In answering this question, the examiner must directly address the NAS update which concluded that there was “sufficient evidence of an association” between hypertension and herbicide exposure. The examiner is asked to consider the article submitted February 2021, that discussed the relation between herbicide exposure and hypertension risk. The examiner is reminded that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. In other words, there should be a more complete medical explanation of why medical evidence does not show Agent Orange is a risk factor for this Veteran’s hypertension. The examiner should provide a complete rationale for any opinions expressed. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.