Citation Nr: 21023560 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-28 715 DATE: April 21, 2021 ORDER The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. Service connection for headaches is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), due to cone rod dystrophy alone, is granted. REMANDED Entitlement to service connection for a kidney disorder is remanded. Entitlement to a rating in excess of 80 percent for cone rod dystrophy is remanded. FINDINGS OF FACT 1. The additional evidence since the April 2014 decision is not redundant or cumulative evidence previously considered and it relates to unestablished facts necessary to substantiate the claim for service connection for tinnitus. 2. The Veteran’s current tinnitus had its onset during service. 3. The Veteran’s headaches had their onset in service. 4. The Veteran’s service-connected rod dystrophy alone precludes him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. The criteria for a TDIU rating due to cone rod dystrophy alone have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1979 to November 1991, to include service at Camp Lejeune. In April 2021, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge. 1. The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for tinnitus is granted. The Veteran previously submitted a claim of entitlement to service connection for tinnitus, which was denied in a February 2014 rating decision on the basis that such was neither incurred in nor caused by service. The February 2014 rating decision became final because the Veteran did not submit a notice of disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s May 2017 claim to reopen, the Veteran submitted statements indicating that his tinnitus had its onset in service: citing numerous incidents of loud noise exposure, to include training with explosives and other loud weapons. See, e.g., VA Form 9 (July 13, 2020). For the purpose of the new and material evidence analysis, the Veteran’s report is presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For these reasons, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 2. Entitlement to service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus, which he relates to exposure to loud noise during service, to include training with explosives and other loud weapons. The Veteran asserts that he has experienced tinnitus in and since service. See, e.g., VA Form 9 (July 2020). All three elements of service connection are established by the competent and credible evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In this regard, the Veteran has a current diagnosis of tinnitus, and he suffered acoustic trauma when exposed to extreme loud noise in service while performing his duties as a combat engineer and maintenance man. See DD Form 214; VA examination (March 2014). Thus, the first two criteria have been met. Further, the competent and credible evidence of record shows that his current tinnitus began during service and have been recurrent since that time. While during the March 2014 VA examination, the Veteran reported that he believed that his tinnitus was related to his hypertension medication, which he began to take after service, he subsequently clarified is position: indicating that he has experienced tinnitus in and since service. See, e.g., VA Form 9 (July 2020). The Veteran is competent to report the onset and continuation of his tinnitus symptoms and the Board finds his report credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a comparison of audiological evaluations conducted upon entrance in January 1979 and during service in January 1988 and March 1989 show a progressive decrease in hearing acuity in nearly every threshold. See Hearing conservation data (March 8, 1989). Indeed, the March 8, 1989, audiological evaluation shows some hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). To the extent that in-service audiological evaluations show a progressive decrease, the March 2014 VA examiner’s opinion that the Veteran’s nonservice-connected caused his tinnitus, supports the notion that the Veteran’s assertion that his tinnitus had its onset in service. Collectively, the lay and medical evidence of record sufficiently establishes that it is at least as likely not that the Veteran’s current tinnitus had onset in service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Accordingly, service connection for tinnitus is warranted. The Board acknowledges that the March 2014 VA examiner opined that the Veteran’s current tinnitus is not related to service. However, the examiner’s opinion carries no probative weight as it is predicated upon the inaccurate factual premise that the Veteran’s in-service audiological evaluations show normal hearing in both ears. 3. Service connection for headaches is granted. The Veteran asserts that his headaches began in service and attributes this condition to his service-connected cone rod dystrophy. In addition to direct service connection, service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). The Veteran seeks service connection for headaches, which he reports began in service and alternatively contends are proximately due to eye strain associated with his service-connected eye disability, that is, rod dystrophy. Here, the Board finds that the competent evidence shows that the Veteran has had headaches, regardless of their etiology, since service. As such, direct service connection is warranted. Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). The Veteran has been in receipt of an 80 percent rating for rod dystrophy. In August 2015, a private optometrist opined that the Veteran’s service-connected rod dystrophy causes photosensitivity, which causes his headaches. The optometrist explained that rod dystrophy causes photosensitivity and reduces vision by destroying the cells in the retina. The optometrist further explained that bright light often causes discomfort and eye strain, which are known causes of headaches. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). The Board acknowledges that the June 2017 VA examiner did not opine as to the etiology of the Veteran’s reported headaches on the basis that the examiner could not confirm a diagnosis of headaches. The examiner reasoned that she could not diagnose headaches as the Veteran had not received medical treatment for headaches. The Board finds that the examiner’s opinion carries no probative weight as it is predicated upon the inaccurate factual premise that the Veteran had not sought treatment for headaches, which is inconsistent with the August 2015 optometry report. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (holding that the Board may not simply adopt an opinion that fails to discuss favorable evidence of record). Additionally, the examiner’s opinion was predicated upon the absence of medical evidence without respect to the Veteran’s competent, credible report of symptoms. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). Thus, in addition to direct service connection being warranted, the Board also finds that the August 2015 optometrist’s opinion sufficiently establishes that it is at least as likely as not that the Veteran’s current headaches are proximately due to his service-connected rod dystrophy. Thus, service connection for for headaches is warranted. 4. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. The Veteran seeks entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training. • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board finds that a TDIU is warranted as the Veteran’s service-connected rod dystrophy precludes him from securing or maintaining substantially gainful employment. Initially, the Board notes that the Veteran satisfies the schedular criteria for a TDIU as his service-connected eye disability, rod dystrophy, has been rated 80 percent disabling throughout the appeal. The evidence shows that the Veteran’s service-connected eye disability results in legal blindness. During the April 2021 Board hearing, the Veteran testified that his blindness precludes him from driving or taking a bus. See also VA examination (June 2017). In statements to the Board, he further explained his blindness has made it very difficult to adapt to society’s increasing dependency upon technology. See, e.g., VA Form 9 (July 2020). The Board finds that the Veteran’s blindness would preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational history. During service, the Veteran worked as a combat engineer and maintenance man. After service, the Veteran worked as a collections representative and received training in information technology and mortgage and loans. The Board finds that the Veteran’s blindness precludes employment consistent with any of these fields as each requires vision. Indeed, the Veteran’s blindness is so severe that he not only cannot drive but cannot take a bus to work or read without a magnifying glass. The Veteran’s field of potential substantial gainful employment is further limited but the fact that his highest education is a high school diploma. After resolving any doubt in the Veteran’s favor, the Board finds that the throughout the pendency of the appeal, the impact of the Veteran’s service-connected rod dystrophy has rendered him incapable of obtaining or maintaining substantially gainful employment consistent with his education and occupational history. See Geib, 733 F.3d 1350 REASONS FOR REMAND 1. Entitlement to service connection for a kidney disorder is remanded. The Veteran seeks service connection for endstage kidney disease, which he contends is related exposure to contaminated water while stationed in Camp Lejeune in 1979. Chronic kidney disease was diagnosed in 2011, and endstage kidney disease was diagnosed in 2016. In June 2018, a VA examiner opined that the Veteran’s kidney disease is less likely than not related to his in-service exposure to contaminated water as it was diagnosed 31 years after his in-service exposure. In a July 2020 brief, the Veteran’s representative cited medical literature stating that “[t]here Is accumulating evidence that acute renal injury, as might occur soon after exposure, significantly increases the likelihood that chronic kidney disease will appear many years later; Such an effect can occur even if the acute injury is sub clinical and thus not detected at the time of exposure . Thus, a patient should not be ineligible for the VA program because of a lack of documented evidence of kidney disease during or shortly after residence at Camp Lejeune.” See Brief (July 15, 2020) (citing Review of VA clinician Guidance for the Health Conditions Identified by the Camp Lejeune Legislation, The National Academic Press, 3 (2015). The Board finds that an addendum opinion is needed to address the potentially favorable medical literature cited in the Veteran’s July 2020 brief. 2. Entitlement to a rating ine excess of 80 percent for cone rode dystrophy is remanded. In his July 2020 substantive appeal, the Veteran reported that his service-connected rod dystrophy had worsened since his last VA examination in June 2017. Indeed, the June 2017 VA examination report indicates that the Veteran was unable to drive, and during the April 2020 hearing, the Veteran testified that his vision had worsened to the point that he can no longer take a bus by himself. As the evidence suggests a material change in the disability, reexamination is warranted under 38 C.F.R. § 3.327. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2020 to present. 2. Schedule the Veteran for a VA examination. The examiner is to identify the current severity of the Veteran’s service-connected eye disability (rod dystrophy). The examination report must include a complete rationale for all opinions expressed. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s chronic kidney disease is at least as likely as not related to his in-service exposure to contaminated water at Camp Lejeune. The clinician is to specifically address the above-referenced medical literature cited in the Veteran’s July 2020 brief. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.