Citation Nr: A23027770 Decision Date: 10/05/23 Archive Date: 10/05/23 DOCKET NO. 230831-372709 DATE: October 5, 2023 ORDER Service connection for chronic kidney disease is denied. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for stroke residuals with right sided weakness is remanded. Service connection for eye condition to include cataracts and retinal pigment epithelium changes, is remanded. FINDINGS OF FACT 1. The Veteran's chronic kidney disease was not incurred in service and is not related to service. 2. The Veteran does not have a current bilateral sensorineural hearing disability per VA regulations. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic kidney disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107;38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1967 to January 1971 and from December 1976 to January 1991. This matter comes before the?Board of Veterans' Appeals?(Board) from July 14, 2021 (stroke residuals, kidney disease, and hearing loss) by the Agency of Original Jurisdiction (AOJ) under the modernized appeals system known as the Appeals Modernization Act (AMA). This matter additionally comes from the AOJ's July 29, 2021 (eye condition) determination. In July 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the AOJ's July 2021 denial of an increased evaluation for stroked residuals, and denial of service connection for chronic kidney disease and hearing loss. In September 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2021 decision. Therefore, the Board may only consider the evidence of record at the time of the July 2021 decision. In August 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the AOJ's decision's denial of service connection for an eye disability, which again, was issued in July 2021 (albeit, the Veteran referenced the AOJ's August 2021 notice of the decision). In October 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2021 decision. Therefore, the Board may only consider the evidence of record at the time of the July 2021 decision. In an August 2023 VA Form 10182, the Veteran appealed the denials of an increased rating for stroke residuals and service connection for chronic kidney disease, hearing loss, and an eye condition, to the Board. He requested direct review of the evidence considered by the AOJ. Thus, the Board's review is limited to the evidence of record at the time of the issuance of the July 2021 rating decisions. 38?C.F.R. §?20.301. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.? 38?U.S.C. §?1110; 38?C.F.R. §?3.303(a).? As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Service connection for chronic kidney disease The Veteran contends he has a chronic kidney disease related to service. The AOJ favorably found that the Veteran has been diagnosed with a current disability of chronic kidney disease. While Veteran was diagnosed with chronic kidney disease, stage III, in an August 2018 VA treatment record, the condition is not a "chronic disease" listed under 38 C.F.R.§ 3.309 (a). Therefore, 38 C.F.R. § 3.303 (b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service treatment records are unremarkable for complaints, treatment, or diagnosis of chronic kidney disease or kidney condition. For example, the January 1991 separation examination did not reveal chronic kidney disease and showed a clinically "normal" endocrine evaluation. The Veteran also denied kidney stones or urine in his blood in his January 1991 Report of Medical History. Nevertheless, the Veteran attributes his kidney disease to service. Although the Veteran, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion, such as determining the etiology of his current chronic kidney disease. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and 38 C.F.R. § 3.159 (a)(2). Consequently, he is not considered competent (meaning medical qualified) to address the etiology of his currently diagnosed chronic kidney disability. Id. In contrast, the competent, objective medical evidence does not suggest a relationship between the Veteran's current chronic kidney disease and active service. Shedden, 381 F.3d at 1163. Rather, the medical evidence persuasively shows the Veteran was not diagnosed with chronic kidney disease until approximately 2013. The Veteran has not been afforded a VA examination and a VA opinion has not been obtained regarding chronic kidney disease. VA must provide a medical examination or opinion when a review of the information and evidence of record shows: (1) there is competent evidence of a current disability; (2) evidence establishing an event, injury, or disease occurred in service; (3) an indication that the current disability may be associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In this case, the first required element is met since a current disability of chronic kidney disease has been established. Nonetheless, the competent evidence does not suggest that the Veteran's chronic kidney disease either occurred in service or is related to service. The evidence connecting the Veteran's current chronic kidney disease to service consists of the Veteran's lay statements. Again, the Veteran is not competent to render such an opinion. Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). Accordingly, the evidence weighs persuasively against the Veteran's service-connection claim for a chronic kidney disease. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for chronic kidney disease is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021)(en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Service connection for bilateral hearing loss The Veteran contends that he developed hearing loss due to military noise exposure from aircraft, mortars, and other weapons in the Air Force. See July 2021 VA examination. The AOJ favorably found that the Veteran experienced in-service hazardous military noise exposure due to his duties in Aerospace Control and Warning Systems. Not all hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The Veteran underwent VA audiological examination in June 2021. The examiner diagnosed sensorineural hearing loss bilaterally. The examiner determined a speech recognition score using the Maryland CNC Test of 100 percent for the right ear and 94 percent for the left ear. The examiner assessed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 30 20 LEFT 10 20 30 35 25 The objective audiometric testing results do not meet the VA criteria under 38 C.F.R. § 3.385 for hearing loss disability in the right and left ears. The audiometric test results are adequate and constitute highly probative evidence that weighs substantially against the claim. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against this claim. The benefit of the doubt doctrine is therefore not for application and service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107 (b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND 3. Entitlement to an increased rating in excess of 10 percent for stroke residuals with right sided weakness is remanded. The AOJ assigned the Veteran's stroke residuals a current rating of 10 percent under 38 C.F.R. § 4.124a (organic diseases of the central nervous system), Diagnostic Code (DC) 8009 (brain, vessels, hemorrhage). It does not appear that the VA examination was based on a complete review of the medical records. The July 2021 VA examiner noted that the Veteran had no current symptoms attributable as stroke residuals, aside from findings of muscle weakness in the upper and lower extremities. However, the examiner did not reconcile contemporaneous VA treatment records noting an active problem of vertigo, which could be a potential stroke residual. Thus, the VA examination was inadequate to accurately assess the severity of his stroke residuals. See Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Remand is required to remedy this pre-decisional duty-to-assist error and arrange for a VA examination of the Veteran's service-connected stroke residuals. 4. Service connection for eye condition to include cataracts and retinal pigment epithelium changes, is remanded. The Veteran contends he has a current eye condition that is attributable to service. The AOJ made favorable findings, per a July 2021 VA eye examination, that the Veteran is currently diagnosed with bilateral cataracts and left eye retinal pigment epithelium changes. A review of the Veteran's service treatment records shows the Veteran's documented eye issues began in 1979. In September 1979, he reported increasing eye difficulties, with complaints of focusing the right eye. In October 1979, the Veteran reported experiencing a "problem with [right]-eye, everything is smaller, depth perception not good". After he reported reduced vision in the left eye, a September 1987 ophthalmology consultation diagnosed central retinal problems. The Veteran was treated for eye problems in October and November 1990. In July 2021, a VA examiner provided an opinion against the possibility that the Veteran's diagnosed cataracts and retinal changes were due to service. The examiner did not discuss or reconcile earlier in-service eye treatment since 1979. As the VA examiner's opinion reflects an inaccurate review of the claims file, the opinion is inadequate. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Remand is necessary to correct this pre-decisional error and arrange for another VA medical nexus opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a clinician, different from the July 2021 VA examiner, to determine the current severity of his service-connected stroke residuals. The examiner shall provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must elicit and address any competent lay statements by the Veteran. 2. Schedule the Veteran for an examination by a clinician, different from the July 2021 VA examiner, to determine the nature and etiology of the Veteran's current eye disability. The examiner shall provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed disability was either incurred in or in any way related to service? A complete rationale must be provided for opinions offered. The examiner must elicit and address any competent lay statements by the Veteran. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.