Citation Nr: 0811931 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-38 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to service connection for peripheral neuropathy, claimed as numbness of the feet, to include the sciatic nerve. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression. 5. Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from September 1967 to September 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent medical evidence to show the veteran is currently diagnosed with erectile dysfunction. 2. There is no competent medical evidence to show the veteran is currently diagnosed with peripheral neuropathy. 3. Bilateral hearing loss was not manifested in service or within one year of service discharge, nor is it etiologically related to his active service. 4. In a correspondence received on March 6, 2008, prior to the promulgation of a decision in the appeal, the veteran withdrew the appeal of the issue of entitlement to service connection for type II diabetes mellitus. CONCLUSIONS OF LAW 1. Erectile dysfunction was not incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Peripheral neuropathy was not incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 3. Bilateral hearing loss was not incurred in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). 4. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to service connection for type II diabetes mellitus. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the veteran received notification prior to the initial unfavorable agency decision in August 2006. The RO's October 2005 and June 2006 notice letters advised the veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claims. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. Post-service treatment records and reports from the VA Medical Center (VAMC) and Vet Center have also been obtained. The appellant has not identified any additional records that should be obtained. The veteran was afforded a VA audiological examination in January 2007. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 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. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Erectile Dysfunction and Peripheral Neuropathy The veteran maintains he currently suffers from erectile dysfunction and numbness of the feet, to include the sciatic nerve, as a direct result of his active service in Vietnam. However, there is no evidence that he is currently diagnosed with erectile dysfunction or any disorder related to numbness of the feet or the sciatic nerve. The veteran indicated at his Board hearing that he has received treatment for these disorders, but has not provided any records of this treatment or a competent medical opinion diagnosing him with any related disability. Without a diagnosis of a disability, the Board cannot grant service connection. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Thus, the Board finds that there is no competent medical evidence of current erectile dysfunction or a disorder related to numbness of the feet, to include the sciatic nerve. The veteran has produced no competent medical evidence or opinion in support of his claim that he suffers from such disabilities. Therefore, the claim for service connection must be denied. The Board acknowledges that the veteran himself has claimed he suffers from these disorders. However, the Board notes that as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Bilateral Hearing Loss The veteran maintains that his currently diagnosed bilateral hearing loss is the direct result of his active service. He asserts that he experienced a significant amount of in- service acoustic trauma including radio communication, helicopters, artillery, mortars and rocket rounds during active service. For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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 (2007). The report of a January 2007 VA audiology examination indicates current bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. Service medical records are negative for any findings of treatment or diagnosis of bilateral hearing loss. On examination pending service discharge in April 1970, the veteran's ears and drums were normal. There were no findings or complaints pertaining to hearing loss. Post-service medical evidence of hearing loss is first documented by the January 2007 VA audiological examination, which is over 35 years post-service. The lapse in time between service and the first diagnosis of hearing loss weighs against the veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). In sum, the Board finds that there is no evidence of hearing loss for VA purposes shown in service or within one year of service discharge. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the veteran's current hearing loss and his in-service acoustic trauma. With consideration of no hearing loss shown in service and the passage of time before hearing loss is shown post-service, a preponderance of the evidence is against the veteran's claim. As noted above, the evidence of record contains a January 2007 VA audiological examination, which includes an opinion as to the etiology of the veteran's current hearing loss. The VA examiner concluded that the veteran's current hearing loss "is less likely as not (less than 50/50 probability) caused by or a result of acoustic trauma in service." In supporting this opinion, the examiner noted that both the entrance and separation examinations indicated normal hearing. In addition, the examiner cited a 2005 Institute of Medicine study which found no scientific basis for delayed onset noise-induced hearing loss. The examiner noted that "the most significant decrease of hearing from noise exposure occurs immediately after noise exposure." Finally, the examiner noted that the veteran has had several occupations since separation from active service that could have exposed him to acoustic trauma, including meat cutter, construction and tractor maintenance. The Board acknowledges that the veteran himself has claimed he currently has bilateral hearing loss arising from in- service acoustic trauma. However, the Board notes that as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. See Espiritu, supra. Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. See Lathan, supra. In sum, the veteran has not provided competent medical evidence establishing that he currently suffers from a hearing loss disability that is etiologically related to his active service. In addition, the absence of any medical records of a diagnosis or treatment for over 35 years after service is probative evidence against the claim for direct service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Type II Diabetes Mellitus Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2007). The appellant has withdrawn the issue of service connection for type II diabetes mellitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue of service connection for type II diabetes mellitus and it is dismissed. ORDER Service connection for erectile dysfunction is denied. Service connection for peripheral neuropathy is denied. Service connection for bilateral hearing loss is denied. The issue of entitlement to service connection for type II diabetes mellitus is dismissed. REMAND The veteran contends that he has PTSD due to military service; he has identified two stressors in support of his claim. First, the veteran contends that one of the veteran's friends, a soldier by the name of Gonzales (or Gonzalez) was killed at Red Beach, Da Nang, Vietnam. A January 2007 statement by the veteran provides the soldier's unit assignment and gives approximate dates for the incident. The second claimed stressor is the veteran's unit having come under indirect fire from rockets, mortars, grenades and other forms of artillery. Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007) (requiring that the diagnosis conform to the requirements of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV); a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2007); Cohen v. Brown, 10 Vet. App. 128 (1997). If the claimant's stressor is not related to combat, then his testimony alone is not sufficient to establish the occurrence of that stressor, and his testimony must be corroborated by credible supporting evidence. Cohen, supra. Thus, if the veteran was not engaged in combat, he must introduce corroborative evidence of his claimed in-service stressor(s). In the present case, the record contains a diagnosis of PTSD. It is, however, unclear what stressor(s) forms the basis for this diagnosis. Additionally, the Board observes that none of the veteran's claimed stressors have been verified. After a careful review of the claims folder, the Board concludes that further development is needed before appellate review of the veteran's claim can proceed. Specifically, the claims folder does not reflect reasonable efforts to verify the veteran's alleged stressors. In this regard, there has been no attempt to verify the veteran's contentions regarding the death of soldier Gonzales. In order to fulfill VA's duty to assist the veteran in developing his claim, the Board finds that a remand is necessary to further develop the veteran's claimed stressors. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request from the U.S. Army and Joint Services Records Research Center (JSRRC), or other appropriate source, verification of whether a soldier named Gonzales (or Gonzalez) of the 263rd Light Equipment Maintenance Company was killed by enemy fire between January 1, 1969, and September 30, 1969, and whether the veteran's unit came under indirect enemy fire between January 1, 1969, and September 30, 1969. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2007). 2. If, and only if, a stressor is verified, schedule the veteran for a VA psychiatric examination to determine the etiology of any currently manifested PTSD. All indicated studies, tests and evaluations deemed necessary should be performed. In determining whether the veteran has PTSD due to an in-service stressor, the examiner is hereby notified that only the verified history detailed in the records by the JSRRC, or other records obtained by the AOJ, may be relied upon. If the examiner believes that PTSD is the appropriate diagnosis, the examiner must specifically identify whether the stressors detailed in the reports of the JSRRC serves as the basis for that conclusion, or whether the currently manifested PTSD is related to other non- service or non-verified events specified in the examination report. The claims file must be made available to the examiner for review and the examination report should reflect that such review is accomplished. A complete rationale for all opinions offered should be provided. 3. Readjudicate the claim of entitlement to service connection for PTSD following all necessary development. If the benefits requested on appeal are not granted to the veteran's satisfaction, issue a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. Thereafter, the case should be returned to the Board for appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs