Citation Nr: 0811829 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-28 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for service-connected right orchiectomy, currently evaluated as 30 percent disabling. 2. Entitlement to service connection for sexual dysfunction. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for peripheral neuropathy of the lower right extremity, claimed as tingling of the right foot and toes. 6. Entitlement to service connection for a "nervous condition". 7. Entitlement to service connection for a "nervous condition", as secondary to service-connected right orchiectomy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Procedural history The veteran served on active duty in the United States Army from July 1968 to March 1970. Service in the Republic of Vietnam is indicated by the record. In January 1971 the veteran was granted service connection for a right orchiectomy. A 10 percent disability rating was assigned. Special monthly compensation for loss of use of a creative organ was also granted. See 38 U.S.C.A. § 1114(k) (West 2002). The veteran filed a claim for an increased rating for his service-connected right orchiectomy in December 2003. In January 2004 he filed an additional claim seeking entitlement to service connection for other disabilities. In the June 2004 rating decision, the RO continued the 10 percent disability rating for right orchiectomy and denied claims of entitlement to service connection for bilateral hearing loss, tinnitus, peripheral neuropathy of the right lower extremity, a nervous condition and sexual dysfunction. The veteran has timely perfected an appeal as to these issues. In March 2007 the RO increased the disability rating assigned veteran's right orchiectomy to 30 percent disabling. Clarification of issues on appeal The Board initially observes that the veteran has requested service connection for a "nervous condition", and the RO has adjudicated the claim under that denomination. It is clear that what is meant by the term "nervous condition" is a psychiatric, rather than a neurological, disability, diagnosed as anxiety disorder with panic attacks. The veteran is currently seeking entitlement to service connection for an anxiety disorder on a direct and secondary basis. While the RO adjudicated this as one issue, the Board is bifurcating the claim into two separate issues. As explained in detail below, additional evidentiary development is required prior to adjudication of the veteran's claim of entitlement to service connection on a secondary basis. Remanded issue The issue of entitlement to service connection for a "nervous condition" claimed as secondary to right orchiectomy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran's right orchiectomy residuals is manifested by sexual dysfunction, and reports of excessive sweating and hot flashes. 2. The veteran's right orchiectomy residuals do not result in marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. 3. The veteran was awarded special monthly compensation based on loss of the use of a creative organ in January 1971. 4. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed right ear hearing loss and his military service. 5. The competent medical evidence of record does not support a finding that left ear hearing loss currently exists. 6. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed tinnitus and his military service. 7. A preponderance of the competent medical evidence of record does not indicate that the veteran has peripheral neuropathy of the lower right extremity. 8. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed anxiety disorder and his military service. CONCLUSIONS OF LAW 1. The veteran is in receipt of the maximum schedular rating, 30 percent, for right orchiectomy residuals. 38 C.F.R. § 4.115b, Diagnostic Code 7524 (2007). 2. Application of extraschedular provisions is not warranted for the veteran's service-connected right orchiectomy. 38 C.F.R. § 3.321(b) (2007). 3. Entitlement to service connection for sexual dysfunction is not warranted as such would constitute improper pyramiding. 38 C.F.R. § 4.14 (2007). 4. Bilateral hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). 5. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 6. Peripheral neuropathy of the lower right extremity was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 7. An anxiety disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to an increased rating for his service-connected right orchiectomy. He also seeks service connection for sexual dysfunction, bilateral hearing loss, tinnitus, peripheral neuropathy of the right lower extremity, and a "nervous condition" on a direct basis. As is discussed elsewhere in this decision, the issue of the veteran's entitlement to service connection for an "nervous condition", claimed as secondary to the service-connected right orchiectomy, is being remanded for additional development. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007) In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for a service connection and increased rating claim in a letter from the RO dated September 12, 2005. The veteran was notified of the evidentiary requirements for a secondary service connection claim in a letter from the RO dated February 7, 2006. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced September 2005 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "relevant records from any Federal agency. This may include medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or the Social Security Administration." With respect to private treatment records, the letter informed the veteran that the VA would make reasonable efforts to obtain private or non- Federal medical records to include "records from State or local governments, private doctors and hospitals, or current or former employers." Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The September 2005 letter further emphasized: "If [there is] evidence [that] is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original] The September 2005 VCAA letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in a March 20, 2006 letter which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service- connected disabilities. With respect to effective date, the March 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In the March 2006 notice letter, the RO further stated that examples of evidence that the veteran should tell VA about or give to VA that may affect the assigned disability rating include the following: information about on-going treatment records, including VA or other Federal treatment records; recent Social Security determinations; statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work; and statements discussing the service-connected disability symptoms from people who have witnessed how they affect him. This complies with the recent decision of the Court concerning enhanced VCAA notice in increased rating cases, Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App., Jan. 30, 2008). In this case, the Diagnostic Code for testis removal pertains to the number of testis removed. The notice letters did not provide at least general notice of these requirements. However, the essential fairness of the adjudication was not affected, because the veteran is currently receiving the schedular maximum disability rating, and he was advised to submit evidence and statements which could help establish an extraschedular rating in the March 2006 notice letter. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's service medical records, VA outpatient treatment records, private medical records and provided several VA examinations. The veteran has indicated that physical examination reports from his former employer, United States Steel, prior to 1980 "could prove decisive for my claim for hearing loss." However, the veteran further indicated that those records could not be located. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise his option of a personal hearing. Accordingly, the Board will proceed to a decision on six of the issues on appeal. (CONTINUED ON NEXT PAGE) 1. Entitlement to an increased rating for service-connected right orchiectomy, currently evaluated as 30 percent disabling. Relevant law and regulations Increased ratings - in general Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Specific schedular criteria Under Diagnostic Code 7524, removal of both testes is 30 percent disabling, while removal of only one testis is noncompensable (zero percent disabling). The Diagnostic Code also stipulates that, in cases of the removal of one testis as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis, with the absence or nonfunctioning of the other testis unrelated to service, an evaluation of 30 percent will be assigned for the service-connected testicular loss. See 38 C.F.R. § 4.115b, Diagnostic Code 7524 (2007). Analysis The veteran seeks an increased disability rating for his service-connected right testicle removal, which is currently evaluated as 30 percent disabling under Diagnostic Code 7913. Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" Than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this case, the Board finds that Diagnostic Code 7524 is applicable because it pertains specifically to the disability at issue (testis, removal) and provides specific guidance on how to rate the disability. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the veteran is appropriately rated under Diagnostic Code 7524. Schedular rating The veteran is currently assigned a 30 percent disability rating under Diagnostic Code 7524. This represents the highest schedular rating available for the veteran's disability. As such, the Board is unable to consider or grant a higher schedular rating. Extraschedular evaluation Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. The Board has been unable to identify an exceptional or unusual disability picture, and neither has the veteran nor his representative. The record does not show that the veteran has required frequent hospitalizations for his right orchiectomy residuals; indeed it appears that he has not been hospitalized at all for this condition. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. The evidence shows that the veteran is currently employed and that his right orchiectomy residuals will manifest as hot flashes and increased sweating. However, there is no indication in the record that these symptoms have caused the veteran to miss work or cause any unusual employment impairment. While the veteran's right orchiectomy residuals may have an adverse effect on employment, it bears emphasis that the schedular rating criteria are designed to take such factors into account. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally the degrees of disability specified [in the ratings schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2007). Thus, the assigned 30 percent disability rating takes into account moderate employment impairment. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that referral of the veteran's right orchiectomy to VA Central Office for consideration of an extraschedular evaluation is not warranted. Hart considerations In Hart v. Mansfield, No. 05-2424 U.S. Vet. App. Nov. 19, 2007, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. The veteran's service-connected right orchiectomy has been rated 10 percent disabling from March 30, 1970 to December 16, 2003 and 30 percent disabling thereafter. The veteran's claim for an increased disability rating for his service- connected right orchiectomy was filed in December 2003. Therefore, the relevant time period under consideration is from December 2002 to the present. The question to be answered by the Board, then, is whether any different rating should be assigned for any period from December 2002 to the present. As a practical matter, this involves inquiry into the assignment of the current 30 percent rating during the one year period prior to December 16, 2003. There have been several VA examinations that have addressed the veteran's right orchiectomy. After a careful review of the record, the Board can find no other evidence to support a finding that the veteran's right orchiectomy was more or less severe during the appeal period. The veteran has pointed to none. Accordingly, there is no basis for awarding the veteran disability rating other than the currently assigned 30 percent for at any time from December 2002 to the present. Conclusion In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to an increased disability rating for his service-connected right orchiectomy. The benefit sought on appeal is accordingly denied. 2. Entitlement to service connection for sexual dysfunction. The veteran is also seeking service connection for sexual dysfunction. Relevant law and regulations Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2007); see also Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2007); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Analysis As indicated above, 38 C.F.R. § 4.14 provides that the evaluation of the same disability under various diagnoses is to be avoided. In this case, the evidence of record indicates that the veteran was awarded special monthly compensation based on the loss of use of a creative organ in January 1971. See 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. § 3.350 (2007). Moreover, as indicated above, he is also currently rated 30 percent disabling for the loss of the right testicle. [As explained above the assignment of a 30 percent rating effectively encompasses the loss of both testicles.] To separately rate the veteran as having erectile dysfunction in addition to both the service- connected loss of testicle and the special monthly compensation would result in improper pyramiding. Accordingly, entitlement to service connection for sexual dysfunction is not warranted. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. In the interest of economy, these two issues will be addressed together. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection. See Chelte v. Brown, 10 Vet. App. 268 (1997). Service connection - hearing loss Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307 and 3.309(a) (2007); see also VA Under Secretary for Health letter dated October 4, 1995 [it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability.] Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2007). For the purposes of applying the laws administered by 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. See 38 C.F.R. § 3.385 (2007). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the veteran's claim. 38 C.F.R. § 3.303(b). Analysis With respect to Hickson element (1) the evidence of record indicates that the veteran has been diagnosed with tinnitus. See a March 2004 VA examination report. Concerning the veteran's bilateral hearing loss claim, in March 2004 a VA hearing examination was conducted by a certified audiologist. CNC speech recognition scores were 96 percent in the veteran's right ear and 100 percent in his left. The audiometric examination showed the following puretone thresholds: Hertz (Hz) 500 1000 2000 3000 4000 Average Left (dB) 15 10 20 35 15 20 Right (dB) 15 10 25 55 45 34 As discussed above, 38 C.F.R. § 3.385 requires that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. The March 2004 VA examination establishes the presence of right ear hearing loss. However, it fails to demonstrate any auditory threshold of 40 dB or greater for the veteran's left ear. Audiometric testing did not reveal three or more auditory thresholds of 26 dB or greater or CNC speech recognition less than 94 percent for the left ear. The Board is aware that the veteran has submitted the reports from multiple audiological tests and has reviewed each report. At no point has the veteran's left ear hearing loss met the criteria established by 38 C.F.R. § 3.385. The evidence of record indicates that the veteran does experience some left ear hearing loss. However, the level of disability has not met the threshold established by 38 C.F.R. § 3.385. Accordingly, Hickson element (1) has been satisfied for the veteran's tinnitus and right ear, but it has not been satisfied for the veteran's left ear. With respect to Hickson element (2), the Board will separately discuss in-service disease and injury. Concerning in-service disease, there is no medical evidence of hearing loss or tinnitus in service. The service medical records reveal that the veteran did not report any hearing problems while in service. The veteran's March 1970 separation examination indicates that the ears were normal upon separation. The Board adds that hearing loss was initially diagnosed over a decade after service, long after the end of the one year presumptive period in 38 C.F.R. § 3.309(a). Indeed, in a July 1971 VA compensation and pension (C&P) examination report, which was just after the end of the one year presumptive period, the examiner specifically noted no hearing loss. The veteran contends that he was not given a physical examination prior to discharge. This is incorrect. The veteran's service medical records include the report of a separation physical examination dated March 29, 1970, the very day he was discharged. Hearing was 15/15; physical examination of the ears was normal. In an accompanying report of medical history, signed by the veteran, he specifically denied hearing loss or ear trouble.. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. To the extent that the veteran is now contending that he experienced hearing loss and tinnitus during service, such statement is far outweighed by the negative service medical records, including the veteran's own report at separation. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. Such records are more reliable, in the Board's view, than the veteran's unsupported assertion of events now over three decades past. The veteran's memory may have been dimmed with time; in addition his recent statements have been made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. The Board adds that to the extent that the veteran may be contending that some presumption in his favor attaches because service medical records do not reference his claimed disorder, this is incorrect. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. In this case, moreover, no service medical records are missing. In short, the objective service medical records, as well as the report of the July 1971 VA examination, far outweigh the veteran's contention that he experienced hearing loss and/or tinnitus in service. Concerning in-service injury, the veteran's DD 214 indicates that he served as a radio operator. In his July 2004 notice of disagreement the veteran stated that he was exposed to constant noise from the radios and that this noise has led to his hearing loss. According to the March 2004 VA examiner, this exposure does not constitute significant noise exposure or acoustic trauma. There is no competent medical evidence to the contrary. Nor is there any other evidence in the record which is suggestive of acoustic trauma during service. Accordingly, Hickson element (2) has not been satisfied, and both claims fail on that basis. With respect to Hickson element (3), medical nexus, the only competent medical opinion of record is that of the March 2004 VA examiner, who indicated that there was no relationship between the veteran's hearing loss or tinnitus and his military service. In making her determination, the VA examiner specifically considered the audiometric test results submitted from the veteran's former employer and stated that the veteran's complaints of hearing loss and tinnitus are "too remote in onset to be related to the military." The Board observes that the examiner's opinion appears to be congruent with the objective medical evidence of record, which as discussed above is devoid of references to hearing problems and/or tinnitus until decades after service. The veteran has not submitted any competent medical evidence to the contrary; the above mentioned March 2004 VA opinion is the only medical opinion in the record to opine on these issues. As was explained in the Board's VCAA discussion above, the veteran has been accorded ample opportunity to submit evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2002) [the claimant has a responsibility to support a claim for VA benefits.] To the extent that the veteran contends that a medical relationship exists between his hearing loss, tinnitus and service, any such statements offered in support of the veteran's claim do not constitute competent medical evidence and cannot be accepted by the Board. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. In this case there is no objective medical evidence of hearing loss until 1983, thirteen years after the veteran left military service. With respect to the veteran's tinnitus claim, the first diagnosis of tinnitus comes from the March 2004 VA examiner, over 40 years after the veteran left military service. In Voerth v. West, 13 Vet. App. 117 (1999), the Court noted that the continuity of symptomatology provisions of section 3.303 do not relieve a claimant of the burden of providing a medical nexus. As discussed above, such medical nexus evidence is lacking in this case. In short, with respect to element (3), the competent medical opinion evidence is against the veteran's claims. In addition, there is no competent evidence of continuity of tinnitus or hearing loss after service. For these reasons, element (3) has not been met, and the veteran's claims fail on this basis as well. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, because Hickson element (1) has not been met as to the left ear, and Hickson elements (2) and (3) have not been met as to either bilateral hearing loss and tinnitus. The benefits sought on appeal are accordingly denied. 5. Entitlement to service connection for peripheral neuropathy of the lower right extremity. Relevant law and regulations The law and regulations pertaining to service connection have been set forth above and need not be repeated. Service connection - Agent Orange exposure A veteran 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(6)(iii) (2007). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) (2007). The diseases which are deemed to be associated with herbicide exposure include acute and subacute peripheral neuropathy, which is defined by the regulations as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset." See 38 C.F.R. § 3.309(e), Note 2 (2006); but see Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630, 27,630-27,641 (May 20, 2003) [which classifies chronic persistent peripheral neuropathy as a condition specifically not associated with herbicide exposure]. Analysis With respect to Hickson element (1), current disability, there is no medical evidence of record which supports the veteran's claim of peripheral neuropathy of the lower right extremity. Upon examination in March 2004, the veteran had a "normal dorsal pedal pulse, normal temperature, color, and hair growth. Touch, pain, position and vibratory sensation" was normal. The VA examiner noted that no neurological abnormalities were found. There is no other competent medical evidence in the record which indicates or suggests that peripheral neuropathy of the lower extremity exists. The veteran has been accorded ample opportunity to present medical evidence in support of his claim and has failed to do so. That is, he has presented no medical evidence which indicates that he has peripheral neuropathy. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To the extent that the veteran himself believes that he has peripheral neuropathy of the lower right extremity, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis. See Espiritu v. supra; see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran are not competent medical evidence and do not serve to establish the existence of a current disability. In the absence of any diagnosed disability, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met for the veteran's peripheral neuropathy claim, and it fails on this basis. The Board will briefly touch upon the matter of presumed herbicide exposure in Vietnam. Although such exposure is presumed, in the absence of any peripheral neuropathy, currently or at any other time, further discussion would be futile. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for peripheral neuropathy of the lower right extremity. The benefit sought on appeal is accordingly denied. 6. Entitlement to service connection for a "nervous condition" on a direct basis. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), the veteran was diagnosed with an anxiety disorder in March 2004. Accordingly, Hickson element (1) has been satisfied. With respect to Hickson element (2), the veteran's service medical records are utterly negative as to any suggestion of an anxiety disorder or any other psychiatric problem. The first evidence of such a disorder comes from outpatient treatment records which state that the veteran's anxiety disorder had its onset in March 1998, nearly 30 years after he left military service. The veteran himself has not specifically indicated that he experienced anxiety during military service. Indeed, the tenor of his statements, to include both his July 2004 notice of disagreement and his August 2004 substantive appeal, is that his anxiety first occurred long after service. In his substantive appeal, he stated "I suffered for these anxiety attacks for several years before seeking medical attention." The veteran left military service in 1970 and evidently did not seek medical attention for anxiety attacks until decades later, in 1998. "Several years" before 1998 would still be decades after service. Of particular significance in the content of he veteran's presentation is that in his initial application for service connection in April 1970 he did not mention problems with anxiety, nor did he do so during the July 1971 C&P examination. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he has now raised]; see also Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. The thrust of the veteran argument's is that "I was not given a physical examination prior to discharge." As has been discussed above with respect to the hearing loss and tinnitus claims, this is not correct. The veteran's service medical records include the report of a separation physical examination dated March 29, 1970, the day he was discharged. Psychiatric evaluation was normal. In an accompanying report of medical history, signed by the veteran, he specifically denied "depression of excessive worry" and "nervous trouble of any sort". To the extent that the veteran is now contending that he experienced anxiety during service (and this is hardly clear), such statement or insinuation is far outweighed by the utterly negative service medical records, including the veteran's own report at separation. In addition, the July 1971 C&P examination noted no psychiatric abnormalities. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. Such records are more reliable, in the Board's view, than the veteran's unsupported assertion of events now over three decades past. The veteran's memory may have been dimmed with time; in addition his recent statements have been made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. Accordingly, Hickson element (2) has not been met, and the veteran's claim fails on this basis alone. The Board additionally observes that in the absence of an in- service incurrence or aggravation of a disease or injury, it follows that Hickson element (3), medical nexus, is necessarily lacking also. Such is the case here. To the extent that the veteran argues that his anxiety disorder is related to his military service, his assertions are not probative of a nexus between the condition and military service. See Espiritu, supra. The veteran's lay opinion is therefore entitled to no weight of probative value. In short, there is not of record competent medical nexus evidence linking the veteran's current anxiety disorder to his military service. Hickson element (3) has also not been satisfied. For reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for a "nervous condition" as being directly due to service. The benefit sought on appeal is accordingly denied. The matter of the veteran's claim of entitlement to service connection for a "nervous condition" as secondary to his service connected right orchiectomy will be addressed in the remand section below. ORDER Entitlement to an increased rating for service-connected right orchiectomy is denied. Entitlement to service connection for sexual dysfunction is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for peripheral neuropathy of the lower right extremity is denied. Entitlement to service connection for a "nervous condition" on a direct basis is denied. REMAND 7. Entitlement to service connection for a "nervous condition", claimed as secondary to service-connected right orchiectomy. The veteran alternatively contends that his "nervous condition" is a result of the symptoms associated with his right orchiectomy residuals. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, the medical evidence indicates that the veteran has been diagnosed with an anxiety disorder. See, e.g., a March 2004 VA examination report. Wallin element (1) has therefore been met. With respect to Wallin element (2), the veteran is service connected for a right orchiectomy. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Similar considerations apply with respect to secondary service connection claims. This case presents certain medical questions which cannot be answered by the Board. These questions concern the relationship, if any, between the veteran's current anxiety disorder and his service-connected right orchiectomy. These questions must be addressed by an appropriately qualified medical professional. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. A medical opinion is therefore necessary. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should arrange for a physician to review the veteran's VA claims folder and provide an opinion, with supporting rationale, as to whether the veteran's currently diagnosed anxiety disorder is related to his service-connected right orchiectomy. If the reviewing physician finds that physical examination of the veteran and/or diagnostic testing is necessary, such should be accomplished. A report should be prepared and associated with the veteran's VA claims folder. 2. After undertaking any additional development deemed by it to be appropriate, VBA should then readjudicate the veteran's claim of entitlement to service connection for a nervous disorder as secondary to his service-connected right orchiectomy. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs