Citation Nr: 21030831 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-01 131 DATE: May 19, 2021 ORDER Service connection for chronic kidney disease is denied. Service connection for right ear hearing loss is granted. A compensable rating for bilateral hearing loss is denied. REMANDED Service connection for diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran's chronic kidney disease had its onset during his active duty service or within one-year post active duty service, or is otherwise related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. 2. The weight of the evidence supports finding that the Veteran has hearing loss for VA purposes in his right ear and that his hearing loss is due to his exposure to loud military noise. 3. At worst, the Veteran's bilateral hearing loss has been characterized by numeric designation Level I in both ears. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic kidney disease have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1953 to October 1955. The Veteran and his daughter provided testimony before the undersigned Veteran's Law Judge (VLJ) at a March 2021 Board hearing. A complete transcript is of record. Service Connection Service connection requires competent evidence showing: (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). Service connection may be granted on a presumptive basis for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during the period from August 1, 1953 to December 31, 1987, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. 38 C.F.R. §§ 3.307 (a)(7) and 3.309(f). Here, chronic kidney disease and diabetes mellitus, type II, are not diseases that warrant presumptive service connection based upon exposure to contaminated water at Camp Lejeune. However, service connection on a direct basis will be considered. 1. Service connection for chronic kidney disease is denied. The Veteran asserts that his chronic kidney disease is the result of his exposure to contaminated water while stationed at Camp Lejeune. Chronic kidney disease is not one of the conditions presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309 (f). However, given the concession that the Veteran was exposed to contaminated water at Camp Lejeune, direct service connection may still be proven. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for any kidney conditions. His December 1955 separation examination shows that he did not attend his physical examination; however, regardless, there is no allegation or even suggestion that he had any kidney condition at that time. The Veteran testified at the March 2021 Board hearing that his nephrologist provided an opinion that his chronic kidney disease is not a result of diabetes. He also testified that he started having kidney pains in about 1961, about five or six years after his separation from the military. The Veteran also reported that none of his treating physicians have attributed his kidney condition to his exposure to contaminated water. The Board notes that the Veteran has been diagnosed with chronic kidney disease. See VA Treatment Record dated April 11, 2016. However, there has been no indication in the post-service medical records that his kidney condition is due to his active duty service, to include his presumed exposure to contaminated water at Camp Lejeune. Further, the Veteran has not asserted that there was any other in-service incurrence which may have led to the development of chronic kidney disease. The Board acknowledges that the Veteran has not been afforded a VA examination for his chronic kidney disease. However, the Board also notes that only the Veteran's assertions have suggested the possibility of any relationship between his exposure to contaminated water at Camp Lejeune and his kidney disease, whereas none of his treating physicians have provided any indication that there is a medical nexus. To the extent that the Veteran believes that his chronic kidney disease is the result of his in-service exposure to contaminated water at Camp Lejeune, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also points out that the Veteran testified that the onset of his kidney pain was about 5-6 years after his separation from the military. Here, the Board finds that VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board is sympathetic to the Veteran's assertions and belief that service connection is warranted based on his presumed exposure to contaminated water at Camp Lejeune. However, chronic kidney disease is not an enumerated disease, for which service connection on a presumptive basis is warranted. 38 C.F.R. §§ 3.307 (a)(7) and 3.309(f). Further, the Veteran has not asserted that the onset of his kidney symptoms was either during his active duty service, or within a year of separation and he has not provided any competent medical evidence indicating a relationship between his chronic kidney disease and his active duty service, to include service at Camp Lejeune. As such, the Board finds that the criteria for service connection have not been met. Accordingly, service connection for chronic kidney disease is denied. 2. Service connection for right ear hearing loss is granted. The Veteran asserts that his right ear hearing loss is due to military acoustic noise trauma. VA received the Veteran's service connection claim for bilateral hearing loss in February 2016. A May 2017 rating decision granted the Veteran service connection for left ear hearing loss because he had hearing loss for VA purposes in the left ear and a May 2016 VA examiner provided a positive nexus opinion. However, hearing loss in the right ear was denied because although the May 2016 VA examiner provided a positive nexus opinion regarding the right ear, audiometric testing had not shown hearing loss for VA purposes in the right ear. The VA examiner explained that there was a connection between his current hearing loss and his active duty service because he was exposed to loud military noise from practice firing of weapons (rifles, machine guns, and small arms), loud military vehicles, loud sirens, alarms, and loud transportation equipment. VA received the Veteran's notice of disagreement (NOD) in July 2018, which showed disagreement with the denial of service connection for hearing loss. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Since the May 2017 rating decision, the Veteran was afforded another VA audiological examination in May 2018, which showed hearing loss for VA purposes. For example, he was shown to have an auditory threshold of 40 and 45 decibels at 3000 and 4000 Hz. The Board concludes that the finding of hearing loss for VA purposes in the right ear, when taken in conjunction with the May 2016 VA examiner's positive nexus opinion, means that the criteria for service connection for right ear hearing loss have been met. Accordingly, service connection for right ear hearing loss is granted. Increased Ratings A compensable rating for bilateral hearing loss is denied. The Veteran asserts that he is entitled to an initial compensable rating for bilateral hearing loss. Specifically, he asserts that he has to turn the volume on his television very loud, cannot hear knocking on the door, and cannot hear water running. VA received the Veteran's service connection claim for bilateral hearing loss on February 19, 2016. A May 2017 rating decision granted the Veteran service connection for left ear hearing loss and assigned an initial noncompensable rating, but denied service connection for right ear hearing loss. The Veteran disagreed with those decisions. This Board decision has granted service connection for right ear hearing loss. As such, given the fact this case has been advanced on the docket on account of the Veteran's age, the Board will adjudicate whether the Veteran is entitled to a compensable rating for his bilateral hearing loss. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. At no time during the appeal period were each of the four hearing thresholds 55 decibels or greater, or that his pure tone threshold was 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz; so, no provision of 38 C.F.R. § 4.86, used to evaluate exceptional patterns of hearing impairment, is applicable. 38 C.F.R. § 4.86 (a). An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. During the course of the appeal, the only audiometric testing was conducted in conjunction with the Veteran's VA examinations. Audiometric testing in May 2016 showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Avg. Right 20 20 10 15 30 18.75 Left 25 20 25 30 40 28.75 The Veteran's Maryland CNC test showed that he scored 96 percent in the right ear and 92 percent in the left ear. The Veteran was afforded a second VA audiological examination in May 2018. The audiological examination report showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Avg. Right 30 25 40 45 40 37.5 Left 25 30 35 45 45 38.75 The Veteran's Maryland CNC test showed that he scored 96 percent in the right ear and 92 percent in the left ear. At a third VA audiological examination in February 2020, testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Avg. Right 30 30 40 45 45 40 Left 30 30 35 45 45 38.75 The Veteran's Maryland CNC test showed that he scored 94 percent in both ears. The results of the May 2016 VA audiological examination showed an average hearing loss of 18.75 in the right ear and a loss of 28.75 in the left ear. He had a speech discrimination score of 96 percent in the right ear and 92 percent in the left ear. Under Table VI, the May 2016 audiological results show that the Veteran had a Level I in the right ear and a Level I in the left ear. A Level I impairment in both ears warrants a noncompensable rating under Table VII. The results of the May 2018 audiological examination showed an average hearing loss of 37.5 in the right ear and a loss of 38.75 in the left ear. He had a speech discrimination score of 96 percent in the right ear and 92 percent in the left ear. Under Table VI, the May 2018 audiological results show that the Veteran had a Level I in the right ear and a Level I in the left ear. A Level I impairment in both ears warrants a noncompensable rating under Table VII. The results of the February 2020 audiological examination showed an average hearing loss of 40 in the right ear and a loss of 38.75 in the left ear. He had a speech discrimination score of 94 percent in both ears. Under Table VI, the February 2020 audiological results show that the Veteran had a Level I in the right ear and a Level I in the left ear. A Level I impairment in both ears warrants a noncompensable rating under Table VII. Here, the Veteran asserted in his July 2018 NOD that he was entitled to a 30 percent rating for his hearing loss. He also asserted that his hearing has progressively gotten worse and has to wear hearing aids to assist with daily functions. The Board acknowledges the Veteran's assertions and observes that the contemporaneous evidence supports his assertion of deteriorating hearing. For example, the three VA audiological examinations of record shows that his hearing has slightly worsened over the years. However, the mechanical application of the rating schedule to the numeric designations assigned based on the audiometric test results does not reveal findings consistent with a compensable rating. The Board does believe that the Veteran's bilateral hearing loss causes him hardship and is sympathetic to his assertion that his hearing deserves a compensable rating. The Board acknowledges his testimony that he has to turn the volume on his television very loud, cannot hear knocking on the door, and cannot hear water running. The Board finds his assertions and descriptions of difficulty hearing to be credible and his audiological test results do show that he indeed has impaired hearing. However, the Board is precluded from deviating from the rating criteria of Diagnostic Code 6100. The Veteran's audiological test results of record have been applied to Table VI and Table VII. 38 C.F.R. § 4.85. Although the Veteran does show diminished hearing acuity, the application of his audiological test results reveals a noncompensable rating. In order to receive a compensable rating, the Veteran would at a minimum need to show a Level II impairment in the better ear and a Level V impairment in the poorer ear; or a Level I impairment in the better ear and a Level X impairment in the poorer ear. Here, the Veteran's hearing results have not shown such results; at worst, he showed a Level I impairment in the right ear and a Level I impairment in the left ear. Unfortunately, the audiometric results of record show that the Veteran's bilateral hearing loss is noncompensable under the schedular criteria. The evidence is not in relative equipoise to warrant a higher evaluation. 38 U.S.C. § 5107 (b). Accordingly, a compensable rating for the Veteran's bilateral hearing loss is denied. REASONS FOR REMAND Service connection for diabetes mellitus, type II, is remanded. The Veteran asserts that his diabetes is the result of his exposure to contaminated water while stationed at Camp Lejeune. The Veteran credibly testified that during his active duty service he experienced excessive urination. His STRs corroborate his assertion; an October 1954 treatment note stated he had acute urethritis. See STR dated October 4, 1954. He further testified that about a year and a half after his separation from the military, he was given a white pill to slow down the frequent urination. The Board notes that the Veteran has been diagnosed with diabetes mellitus, type II, and is currently being treated for the disability at VA. The Board also notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of his diabetes. Here, based on the Veteran's presumed exposure to contaminated waters at Camp Lejeune, his assertion that his diabetes is due to the exposure to contaminated water, and the fact that he had excessive urination during his active duty service and was prescribed medication to slow down frequent urination, which is a symptom of diabetes, relatively soon after his separation from the military, the Board finds that remand is necessary to obtain a medical opinion to determine whether any such diagnosis is caused by or related to his active duty service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) The matters are REMANDED for the following action: 1. Obtain a medical opinion to determine the etiology of the Veteran's diabetes mellitus, type II. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The examiner should answer the following question: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's diabetes mellitus, type II, began in service or is etiologically related to service, to include his presumed exposure to contaminated water at Camp Lejeune? Why or why not? The Board directs the examiner's attention to the Veteran's testimony, that he experienced frequent urination during his active duty service and was prescribed a white pill about a year and a half after his separation from the military to slow down his frequent urination. Hearing Transcript pages 7-9. The Board also notes that the Veteran's STRs show he was diagnosed with acute urethritis in October 1954. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.