Citation Nr: 1314800 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 05-28 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for right ear hearing loss, to include as secondary to service-connected ceruminosis and tinnitus. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected epididymitis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and D.P. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to October 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in December 2004 and January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2008, and again in January 2009, the Board remanded the Veteran's claim to reopen his right ear hearing loss service connection claim. In October 2010, the Veteran requested to participate in a Board hearing, at which time the Veteran had also perfected an appeal of his service connection claim for erectile dysfunction. In August 2011, the Veteran and D.P. appeared at a hearing before the undersigned Veterans Law Judge and presented testimony on both of the issues on appeal. A transcript of the hearing is in the Veteran's file. In January 2012, the Board remanded the service connection claim for erectile dysfunction and reopened and remanded the service connection claim for right ear hearing loss. With regard to the Veteran's right ear hearing loss service connection claim, any failure to comply with the remand directives is rendered moot, as the Board is granting the benefit sought. As VA audiological and ear disease examination reports reflect diagnoses of left ear sensorineural hearing loss, and the Veteran was exposed to acoustic trauma during service, a claim for service connection for left ear sensorineural hearing loss has been raised by the record and is hereby REFERRED to the RO for further development. The issue of service connection for erectile dysfunction, to include as secondary to service-connected epididymitis, 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. The Veteran experienced right hearing loss during and continually since service. 2. The Veteran is currently diagnosed with right ear sensorineural hearing loss. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection Claim The Veteran reports that he was exposed to acoustic trauma during service while performing his duties, which required his close proximity to a flight line, resulting in regular jet engine noise exposure. He further correlates his current right-ear hearing loss to his service-connected right ear pathology, namely ceruminosis and tinnitus. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder, or for an increase in disability caused by a service connected disorder. 38 C.F.R. § 3.310. In addition, certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A hearing loss disability is defined by regulation. 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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 report of regular exposure to jet engine noise while performing his duties during his five years of active service is consistent with his DD Form 214, which reflects his assignment to an Air Force Base and his military occupational specialty as an inventory management specialist. While the Veteran's in-service audiometric test results do not reflect that the Veteran evidenced a right ear hearing loss during service, the records reflect that the Veteran reported experiencing diminished right ear hearing acuity in August 1978. In 1991, the Veteran sought service connection for right ear hearing loss, reporting the onset of his decreased hearing acuity as occurring in 1975, during active service. He further reported being under a physician's care for his hearing impairment, although these private treatment records were not obtained. However, subsequent private and VA audiological treatment records reflect the Veteran's eventual diagnosis of sensorineural hearing loss in May 2008, as well as the Veteran's consistent reports of the onset of his right ear hearing impairment as occurring during active service. As a decrease in hearing acuity is a symptom capable of lay observation, the Veteran is competent to report the onset of his perceived hearing loss during service and continuity of hearing loss symptoms since service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). As the Veteran's reports of the onset and continuity of his hearing loss are corroborated by a service treatment record documenting his report of experiencing diminished hearing acuity, and as his reports have remained consistent over time, the Veteran's report of experiencing a hearing loss during and since service is credible. Thus, the Veteran's competent, credible statements regarding the onset and continuity of his hearing loss symptoms are accorded great probative value. The Veteran underwent a VA examination in November 2009, during which the examiner diagnosed right sensorineural hearing loss. The examiner opined that, while the Veteran's right ear hearing loss was the result of noise exposure, it was not the result of in-service noise exposure, as a comparison between the Veteran's audiometric testing on entrance to service and during a 1986 reservist enlistment medical examination failed to suggest that the Veteran's hearing loss manifested during service. However, while the examiner noted the Veteran's "subjective report" of experiencing decreased hearing acuity recorded in a 1994 treatment record when formulating this opinion, the examiner failed to consider the Veteran's competent, credible report of the onset of his hearing loss symptoms during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of medical records to provide a negative opinion). Moreover, the examiner failed to acknowledge or discuss the Veteran's documented complaint of diminished hearing acuity during service. Given these deficiencies, the examiner's medical opinion is accorded no probative value. The probative evidence of record reflects the Veteran's documented complaint of experiencing diminished right ear hearing acuity during service; his competent, credible reports of experiencing the onset of his right ear hearing impairment during service and a continual hearing impairment since service; and a current diagnosis of right sensorineural hearing loss. As sensorineural hearing loss is a chronic disease as contemplated by 38 C.F.R. § 3.309(a), the Veteran may establish service connection eligibility for this currently-diagnosed disease based on his credible reports of continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that a veteran's reports of continuity of symptomatology may serve to establish service connection pursuant to 38 C.F.R. § 3.303(b) for chronic diseases enumerated in 38 C.F.R. § 3.309(a), such sensorineural hearing loss, an organic disease of the nervous system). Accordingly, service connection for right ear hearing loss is warranted. ORDER Service connection for right ear hearing loss is granted. REMAND During the Board-directed VA genitourinary examination performed in January 2013, the examiner opined that the Veteran's currently-diagnosed erectile dysfunction was not secondary to his service-connected epididymitis, stating that relevant medical literature failed to note a connection between the two disorders. Rather, the examiner noted the etiology of the Veteran's erectile dysfunction as hypogonadism. However, the examiner failed to offer a medical opinion as to whether the Veteran's hypogonadism is related to or aggravated by his service-connected epididymitis, although there is a plausible correlation between these disorders. Moreover, while the Veteran reported the onset of his erectile dysfunction in the 1970's during the examination, the examiner failed to offer an opinion as to whether the Veteran's erectile dysfunction was directly related to his period of active service, which spanned from 1974 to 1979. See Dalton, 21 Vet. App. 23; see also Walker, 708 F.3d 1331 (holding that continuity of symptomatology may only serve as a basis for awarding service connection for those chronic disabilities enumerated in 38 C.F.R. § 3.309(a), which does not include erectile dysfunction). In order to remedy these deficiencies, a new medical opinion must be obtained. The Veteran's recent, outstanding VA treatment records must also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since January 2011. 2. Return the Veteran's claims file to the VA medical professional who performed the Veteran's January 2013 VA genitourinary examination, or a suitable replacement if the examiner is not available. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction, with reported onset in the 1970's, is related to service. The examiner is to provide an opinion as to whether it is at least as likely as not that the Veteran's hypogonadism, noted as the etiology of his erectile dysfunction in the 2013 examination report, is a result of, related to, or aggravated by his service-connected epididymitis. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs