Citation Nr: 21039860 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-01 570 DATE: July 1, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for a kidney condition is denied. Entitlement to service connection for multiple sclerosis is granted. FINDINGS OF FACT 1. Left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include herbicide agent exposure, and did not manifest to a compensable degree within one year of separation from active duty. 2. The evidence of record does not demonstrate that the Veteran's current kidney disorder began in or is otherwise the result of military service, to include exposure to herbicide agents, or manifested within one year of service. 3. Resolving all doubt in favor of the Veteran, his currently diagnosed multiple sclerosis manifested to a compensable degree within seven years of his separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, Diagnostic Code 6100. 2. The criteria for service connection for a kidney disorder have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, Diagnostic Code 7599-7541. 3. The criteria for service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.124a, Diagnostic Code 8018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to November 1970. His military personnel records reflect service in the Republic of Vietnam from December 1969 to November 1970; accordingly, the Veteran is entitlement to the presumption of exposure to Agent Orange. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the Veteran's claims of entitlement to service connection for bilateral hearing loss, a kidney condition, and multiple sclerosis for additional development; they now return for further appellate review. The Board notes that, while the Veteran's claim for entitlement to service connection for hearing loss was originally characterized as bilateral hearing loss, service connection for right ear hearing loss was granted in June 2020. Accordingly, the issue on appeal is characterized as entitlement to service connection for left ear hearing loss. 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304 (b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Under 38 U.S.C. § 1153, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306 (a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a)(6)(i). As relevant, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). As the record reflects that the Veteran served in Vietnam from December 1969 to November 1970, he is presumed to have been exposed to herbicide agents. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure, provided that they manifest to a degree of 10 percent or more within a specified time period. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). While the Veteran's claimed disorders have not been acknowledged to be presumptively related to exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left ear hearing loss. The Veteran contends that he is entitled to service connection for left ear hearing loss on a direct basis. In the alternative, the Veteran also contends that his left ear hearing loss is related to his conceded exposure to herbicide agents while serving in Vietnam. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz 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. As an initial matter, the Board notes that the Veteran has a current diagnosis of left ear sensorineural hearing loss for VA purposes as demonstrated at a January 2020 VA examination. The Board also finds it reasonable to concede that the Veteran was exposed to hazardous noise during service, as his military occupational specialty listed on his Department of Defense Form 214 is dozer operator. Thus, the relevant inquiry is whether the Veteran's currently diagnosed left ear hearing is related to his acknowledged in-service noise exposure. However, the evidence does not show, and the Veteran does not report, that he was diagnosed with left ear hearing loss as defined by VA during or within one year of service. Further, his separation examination shows normal left ear hearing acuity and the medical evidence of record does not show that the Veteran's left ear hearing loss is related to herbicide agent exposure. Finally, his own assertions that his current left ear hearing loss is related to service cannot serve to establish, on their own, the requisite nexus to service as he lacks the competence to offer such opinion. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a lay person is not considered competent to testify regarding medically complex issues). As such, a competent medical opinion is required to decide the claim. In this regard, a May 2014 VA examiner diagnosed the Veteran's left ear hearing disorder and stated that, because the Veteran did not have left ear hearing loss at the time of separation from service, his current left ear hearing loss is less likely than not related to military service. However, the examiner did not discuss the significance of the findings of the multiple audiology tests conducted during service, to include whether the Veteran had a hearing disability that preexisted service. The examiner also did not address the Veteran's contention that his current left ear hearing loss is due to in-service herbicide agent exposure. A new opinion was, therefore, rendered by a VA audiologist in January 2020, with an addendum opinion issued in May 2020 by the same examiner. After considering all evidence of record, this examiner opined that it is less likely than not that the Veteran's current left ear hearing loss is related to his in-service noise exposure or his herbicide agent exposure. As a rationale, the examiner explained that, based on the normal hearing acuity at separation, the lack of any significant threshold shift in hearing acuity during service, and current examination findings, no evidence shows that the Veteran's left ear hearing loss is more likely than not (i.e., more than a 50 percent probability) related to his military service. The examiner cited medical literature in support of her opinion, explaining in detail her finding that there is no established causative relationship between herbicide agent exposure and hearing loss. Unlike the May 2014 examiner, the January/May 2020 examiner also stated that there was not clear and unmistakable evidence that the Veteran' shearing loss disability pre-existed his military service. In this regard, the examiner considered the initial audiological evaluation results from May 23, 1968, which indicated that the Veteran had left ear hearing loss upon induction; however, the examiner found more probative the audiology finding upon recheck in July 1968 that the Veteran's left ear hearing was within normal limits, which was confirmed with another recheck a few months later in 1969. The Board finds that the January/May 2020 VA examiner's opinion is entitled to great probative weight as such opinion considered all of the pertinent evidence of record, to include the Veteran's statements regarding the onset and continuity of symptomatology and the in-service audiograms, and provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Furthermore, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. In reaching this determination, the Board acknowledges that the VA examiner relied, in part, on the 2005 IOM report as a basis for providing a negative opinion, which has qualifying or contradictory statements, which she, in fact, acknowledged. McCray v. Wilkie, 31 Vet. App. 243 (2019). However, the Board finds that such does not render the opinion inadequate or diminish its probative value. In this regard, the Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term ("unlikely"). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested "a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." Therefore, the Board finds that left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include herbicide agent exposure, and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for a kidney condition. The Veteran maintains that he developed a kidney condition as a result of his exposure to Agent Orange in Vietnam. As an initial matter, the Board recognizes that the Veteran has a current diagnosis of nephrolithiasis, with recurrent urinary tract infections, as noted on the October 2019 VA Nephrology Disability Benefits Questionnaire. As discussed, supra, the Veteran's in-service herbicide agent exposure has also been conceded. Accordingly, the question remains one of nexus between the current disorder and the Veteran's military service. As discussed above, certain diseases warrant presumptive service connection for veterans who were exposed to designated herbicide agents during their active service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a), 3.309(e). Kidney stones and urinary tract infections, however, are not listed as presumptive diseases. See 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). As such, the Board finds that entitlement to service connection on a presumptive basis related to herbicide agent exposure is not warranted for the Veteran's claimed kidney condition. Regarding entitlement to service connection on a direct basis, the Veteran underwent a VA examination in connection with his current claim in October 2019. Following a review of the file, an interview with the Veteran, and a physical examination, the examiner noted the Veteran's diagnoses of kidney stones and urinary tract problems. The examiner opined that the Veteran's kidney and urinary tract disorder were less likely than not (i.e., less than a 50 percent probability) related to any in-service injury, event, or disease, to include exposure to Agent Orange while in Vietnam. As rationale, the examiner cited extensive medical records review, including service treatment records, and found no in-service kidney or urinary tract problems or evidence supporting a positive nexus. Specifically, the examiner noted that the Veteran's service treatment records were silent as to an in-service injury, event, or disease that would account for the Veteran's nephrolithiasis or recurrent UTIs. The examiner also stated that the list of presumptive diseases associated with exposure to Agent Orange did not include nephrolithiasis or recurrent UTIs. Furthermore, the examiner emphasized that VA literature, as well as general peer-reviewed literature is silent as to a causative relationship between Agent Orange exposure and both nephrolithiasis and recurrent urinary tract infections. The Board affords great probative weight to the October 2019 VA examiner's opinion, as such is predicated on a thorough review of the Veteran's medical history and included a complete rationale, which considered the totality of the relevant facts, and research on the Veteran's claimed link between Agent Orange exposure and his kidney and urinary tract disorders. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. The Board also finds that entitlement to service connection for the Veteran's kidney condition is not warranted based on the presumption related to chronic diseases. As noted, supra, certain chronic diseases, including calculi of the kidney or bladder, are potentially eligible for presumptive service connection as chronic diseases. In this case, however, the evidence did not indicate that any kidney calculi were shown as chronic in service, that such disability manifested to a compensable degree within the presumptive period of one year or that such disability was noted in service with continuity of symptomatology. As such, the Board finds that entitlement to service connection is not warranted based on the chronic disease presumption. In this case, the preponderance of the evidence is against a finding that there is a link between the Veteran's nephrolithiasis with urinary tract infections and his military service, to include exposure to herbicide agents. As discussed above, lay persons are competent to provide opinions on some medical issues. See Jandreau, supra. In this case, the Veteran is not competent to render any etiology opinion regarding his nephrological conditions. Determining the etiology of the Veteran's kidney stones and urinary tract infections requires medical inquiry into internal processes and functioning. Such processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Id. Because his lay opinion is not competent in this case, it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. As such, the preponderance of the evidence is against service connection for a kidney condition, to include as due to Agent Orange exposure. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for multiple sclerosis. The Veteran contends that his currently diagnosed multiple sclerosis manifested within seven years of his separation from service in June 1971, as was explained in a July 2013 private medical opinion. Or, in the alternative, he claims that his multiple sclerosis is related to his acknowledged in-service exposure to herbicide agents coincident with his service in the Republic of Vietnam. As the Board finds that service connection is warranted on a presumptive basis, his alternative theory of entitlement need not be further addressed. When a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain diseases to a degree of 10 percent within seven years, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Multiple sclerosis is one such disease. In this regard, Diagnostic Code 8018 provides that the minimum rating for multiple sclerosis is 30 percent. 38 C.F.R. § 4.124a. The Board also notes that the Veteran has a current diagnosis of multiple sclerosis, as is reflected in the October 2019 VA examination report and extensive medical evidence of record. While the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to multiple sclerosis, and such was not diagnosed officially with a spinal tap until 1990, the evidence of record reveals that he reported symptoms of multiple sclerosis, to include bilateral upper and lower extremity weakness and blurry vision soon after separation from service. In this regard, the Veteran's private treatment provider stated in a July 2013 letter that the Veteran's easy fatigability, blurred vision, and progressive limb weakness began soon after separation from service in 1970. He also specifically stated that these same symptoms continued and eventually led to diagnosis in 1990. Medical records from the time of diagnosis similarly support such finding. In this regard, a November 12, 1990 private medical treatment note discusses the Veteran's multi-year history of bilateral upper and lower extremity weakness and blurry vision. Specifically, the Veteran stated that, beginning in 1985, he experienced a significant progression of the limb weakness which existed prior to such date. It was additionally noted that such symptoms had progressed over time to the point of difficulty walking on the date of treatment in 1990. The Board acknowledges the October 2019 VA opinion, which stated that it was less likely than not that the Veteran's multiple sclerosis was directly related to his military service, to include his presumed exposure to Agent Orange while in Vietnam. However, the Board notes that this VA examiner focused on whether the Veteran's multiple sclerosis manifested in service or manifested in 1990, to include as a result of exposure to Agent Orange. The examiner did not address the November 1990 medical treatment notes, the lay statements of the Veteran regarding onset of symptomatology, or the private neurologist's statement regarding the manifestation of the Veteran's multiple sclerosis symptoms in the years between 1970 and 1977. Based on the foregoing, the Board finds that the Veteran's reported symptoms of bilateral upper and lower extremity weakness and blurry vision, which progressed over a period of years from to the point of difficulty walking by November 1990, were initial manifestations of his multiple sclerosis. Thus, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed multiple sclerosis manifested to a compensable degree within seven years of his separation from service. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.