Citation Nr: 22016818 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-19 916 DATE: March 23, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for arterionephrosclerosis is denied. REMANDED Entitlement to a rating greater than 30 percent for kidney cancer with a right nephrectomy is remanded. Entitlement to a rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of doubt, his tinnitus is causally related to his service. 2. The competent and credible evidence of record does not show a current diagnosis for arterionephrosclerosis. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for arterionephrosclerosis, to include as due to exposure to contaminated water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to August 1970. In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. Although the Veteran filed a separate claim of TDIU, a claim for TDIU was raised as part of the claims for increased rating for kidney cancer and PTSD before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus was caused during military service while working as a combat engineer responsible for mine clearing which exposed him to explosions. His military occupational specialty exposed the Veteran's to hazardous noise during service. The Board concludes that the Veteran currently has tinnitus that is related to his conceded noise exposure in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran credible with regard to his claim of incurrence of tinnitus in service and continuity of tinnitus since service The March 2016 VA opinion is afforded little probative value because the rationale for the negative opinion is inadequate because the examiner relied solely on the Veteran's inability to pinpoint the beginning of his tinnitus. The Veteran testified during his June 2020 Board hearing that he started experiencing tinnitus during military service and that it continued and worsened since service. The Board finds the Veteran's lay assertions that his tinnitus began in service and has continued since are competent, credible, and probative. Those assertions, in connection with his conceded in-service noise exposure, service connection for tinnitus is granted. 2. Entitlement to arterionephrosclerosis The Veteran contends that he has arterionephrosclerosis that is associated with his service-connected right kidney cancer. The Board concludes that the Veteran does not have a current diagnosis of arterionephrosclerosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for kidney cancer was granted under a presumption of exposure to contaminated water while stationed at Camp Lejeune. The Veteran's VA medical records document that the Veteran had a right nephrectomy in August 2008 due to kidney cancer. VA medical records also document lab results from samples taken from the Veteran's removed right kidney. In August 2008, the Veteran's records document that his right kidney had arterionephrosclerosis and focal interstitial nephritis. There are no records indicating that the Veteran has or has had a diagnosis for any left kidney condition. The first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran has had a diagnosis of arterionephrosclerosis at any time during the period on appeal. The Veteran's arterionephrosclerosis was a finding identified in the right kidney that was removed in August 2008 and no longer a current diagnosis, service connection is not warranted. As the evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating greater than 50 percent for PTSD is remanded. 2. Entitlement to a rating greater than 30 percent for kidney cancer with a right nephrectomy The Board is unable to make an informed decision on the increased rating claims for PTSD and kidney cancer with a right nephrectomy because additional development is necessary. At the June 2020 hearing, the Veteran testified that his PTSD symptoms have worsened since his last VA examination in March 2016. Therefore, on remand a new VA examination is warranted. Regarding the Veteran's increased rating claim for kidney cancer with a right nephrectomy, there is not a VA examination in the record that assesses the severity of the Veteran's kidney condition. The VA medical opinions for the kidney only address whether a nexus exists for service connection. Therefore, on remand a VA examination that assess the severity of any residuals from the Veteran's service-connected kidney nephrectomy is warranted. 3. Entitlement to TDIU The TDIU claim is inextricably intertwined with the increased rating claims and adjudication of that issue will be deferred until the increased rating issues are decided. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any providers who treated him for PTSD and kidney complaints since June 2019. Take all appropriate action to obtain records from identified providers. 2. After completion of the above, schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected PTSD and Kidney disability. The Veteran expressed concern about attending in person due to concerns about the COVID-19 so consider whether tele-health examinations could be accomplished. Copies of all pertinent medical records should be made available to the examiner for review. The examiner must complete the corresponding VA disability benefits questionnaires (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.