Citation Nr: 1318725	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  08-37 337	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected diabetes mellitus type II.  

2.  Entitlement to service connection for bilateral hearing loss.  

3.  Entitlement to service connection for tinnitus.  

4.  Entitlement to service connection for residuals of a head injury or traumatic brain injury (TBI).  


REPRESENTATION

Veteran represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran had active service from July 1968 to July 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2008, March 2011, and May 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

The Veteran testified before a Decision Review Officer (DRO) at the RO in March 2010 in connection with his claim for service connection for erectile dysfunction.  There is no copy of the transcript of record.  The Veteran was notified in January 2012 that he could not be provided with a transcript of the March 2010 hearing because the cassette tape which recorded that hearing had been misplaced.  He was informed that he could have another hearing, submit a statement containing the facts to which he attested, or request that the case proceed on the basis of the evidence of record.  In response, in VA Form 21-4138, Statement in Support of Claim, in January 2012 he set forth the facts supporting his claim for service connection for erectile dysfunction, to which was attached a medical article.  

Subsequently, in his January 2013 substantive appeal, the Veteran stated that he did not want a Board hearing; however, he requested a local hearing with a DRO.  Thereafter, later in January 2013 he withdrew his request for a DRO hearing.  

In April 2013, the Veteran's representative submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration.  38 C.F.R. 
§ 20.1304(c) (2012).  Therefore, the Board may properly consider such newly received evidence.  

In January 2013, the Veteran filed claims for service connection for dementia as secondary to service-connected diabetes mellitus type II, rhinitis, sinusitis, and stomach problems; however, such issues have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.

The issues of service connection for erectile dysfunction and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  


FINDINGS OF FACT

1.  Bilateral hearing loss was not present in service, manifested within one year of the Veteran's discharge from active duty, or shown to be causally or etiologically related to any disease, injury, or incident in service.

2.  A head injury or TBI did not occur in service and any residuals associated with a head injury are not shown to be causally or etiologically related to any disease, injury, or incident in service.  
 


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6(a), 3.102, 3.303 , 3.307, 3.309 (2012).

2.  Residuals of a head injury or a TBI were not incurred in or aggravated by the Veteran's active duty military service.  38 U.S.C.A. §§ 101(24), 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6(a), 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 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 of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, June 2010 and April 2011 letters, sent prior to the initial unfavorable decisions issued in March 2011 and May 2011, respectively, advised the Veteran of the evidence and information necessary to substantiate his claims for service connection for bilateral hearing loss and residuals of a head injury or TBI, respectively, as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

Relevant to the duty to assist, the Veteran's service and personnel treatment records, post-service VA and private treatment records, and records from the Social Security Administration (SSA) have been obtained and considered.  The Veteran has not identified any additional, relevant and outstanding records that have not been requested or obtained.  In this regard, the Board notes that in his January 2013 substantive appeal, the Veteran alleged that he sustained a head injury on two occasions in service.  Specifically, he indicated that, on June 12, 1969, a tire blew out on a forklift and knocked him out and, approximately three months afterwards, a bomb exploded and he was knocked unconscious.  He requested that VA obtain the Morning Reports for such time period as he believed they would substantiate his claim since two service members were killed in the explosion.  There is no indication that the AOJ has attempted to obtain such Morning Reports.  However, the Board finds that a remand to do so is not necessary as there is no reasonable possibility that such documents would substantiate the Veteran's claim for service connection for residuals of a head injury or TBI.

In this regard, as will be discussed herein, the Board finds the Veteran's claim that he sustained a head injury or TBI in service to be not credible.  While the Morning Reports may indicate that two men were killed as a result of an explosion, it would not document that the Veteran sustained a head injury in the same accident.  Moreover, he has not contended that such Reports would show his injury.  Rather, he has only alleged that the Reports will show that two men died in an explosion.  Therefore, even if such explosion were documented, there is still no credible evidence that the Veteran sustained a head injury or TBI in the explosion.  Consequently, as the Morning Reports are irrelevant to the Veteran's pending claim, there is no violation of the duty to assist by VA in attempting to obtain them.  See Loving v. Nicholson, 19 Vet. App. 96 (2005).

The Veteran was also afforded a VA examination in February 2011 with respect to his claim for service connection for bilateral hearing loss.  The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing.  The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met.  

The Veteran has not been afforded a VA examination in connection with his claim for service connection for residuals of a head injury or TBI; however, the Board finds that such is not necessary in the instant case.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

As relevant to the Veteran's claim for service connection for residuals of a head injury or a TBI, the Board finds that an examination and/or opinion is not necessary in the instant case.  Specifically, as will be discussed below, there is no credible evidence that the Veteran had a head injury or TBI during service and no indication that his alleged residuals are otherwise related to service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this regard, his service treatment records are negative for any such injury and the Veteran's statements regarding such injuries are not credible.  The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim.  

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Background

STRs reflect that pre-induction examination in November 1967 found no pertinent abnormality.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5
-5
-5
Not tested
-5
LEFT
-10
0
-10
Not tested
0

Examination for induction July 1968 found no pertinent abnormality.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
-5
0
Not tested
-5
LEFT
15
15
25
Not tested
30

In June 1969 the Veteran had much dirt and cerumen in his ears, and his left eye hurt.  Hydrogen peroxide was applied to his ears and Visine to his eye.  

A medical history questionnaire at service separation in July 1971 reflects that the Veteran had many complaints, which included ear, nose or throat trouble, but he denied hearing loss and a history of a head injury.  

On examination in August 1983 for the reserves no pertinent abnormality was found.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
5
5
0
LEFT
5
0
5
5
5

In an adjunct medical history questionnaire the Veteran denied frequent headaches, hearing loss or a head injury.  

On examination in August 1987 for the reserves no pertinent abnormality was found except that he had impacted cerumen.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
5
15
LEFT
5
0
5
5
20

In an adjunct medical history questionnaire the Veteran denied frequent headache, hearing loss or a head injury.  

Private clinical treatment notes from 1975 to 1985 are negative as to hearing loss, tinnitus, and head injury residuals but note that wax was removed from both of the Veteran's ears in December 1982.  

In the Veteran's initial VA application for benefits in March 1990 he made no mention of a hearing injury, hearing loss or tinnitus.  

On VA general medical examination in 1990 the Veteran reported a prior neck injury.  On examination he had increased wax in his ears but the tympanic membranes and ear canals were negative.  Cervical spine X-rays were negative for fracture or dislocation but there was mild disc space narrowing at C3-4 and C4-5.  The diagnosis was an old cervical spine injury with mild degenerative changes at C3 thru C5.  

Examination in April 1991 for the reserves noted no pertinent abnormality.  
On the audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
Not tested
15
LEFT
15
10
5
Not tested
15

In an adjunct medical history questionnaire the Veteran denied a head injury but reported having or having had hearing loss.  

At an August 1991 RO hearing the Veteran testified that he had been in Thailand for one year and had worked as a stevedore supervisor and sometimes as a truck driver.  The work involved unloading ships and ammo storage.  He had had neck and low back pain since 1969 but did not recall any accident or injury.  Page 10 of that transcript.   

An August 1992 report of a consultation by Dr. J. R. reflects that the Veteran had been privately hospitalized in August 1992 for "forgetting" since a motor vehicle accident (MVA) in March 1992 when driving 18 wheeler, from which he believed he had lost consciousness.  After the injury, when he woke up, his head was ringing.  Since then he had been treated for blackouts.  He had been diagnosed with post-traumatic cervical myalgia.  He had had headaches, off and on.  Dr. J. R. felt that, while unlikely, it was important to rule out an organic brain disorder because of the memory problems which were probably functional and could represent some kind of dissociative disorder related to stress.  There was an essentially negative neurological work-up and a compensation neurosis was to be ruled out.  

Examination in July 1993 for the reserves noted that the Veteran had multiple somatic complaints ranging from musculoskeletal dysfunction to atypical chest pain, headaches, diplopia, syncope, and shortness of breath.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
Not tested
15
LEFT
20
10
0
Not tested
15

An adjunct medical history questionnaire noted that he was presently under psychiatric and general medical care for injuries in an MVA for which he had been hospitalized and declared by a private physician to be disabled.  He complained of chest pain, syncope, headaches, nightmares, sciatica, shoulder pain, impotence, imbalance, muscle spasm, transient ischemic attacks, and double vision.  It was noted that he was receiving long term disability benefits.  He had multiple somatic complaints but denied hearing loss. 

During VA hospitalization in August 1993 and September 1993 the Veteran related two in-service PTSD stressors, one was a plane accident and the other a vehicular accident.  It was noted that a few months ago he had been in an MVA, after which PTSD symptoms reportedly became worse.  The discharge diagnoses included a history of head trauma with blackouts and memory difficulties.  

On VA psychiatric examination in September 1993 the Veteran reported that he was last employed in 1992 as a truck driver but left that job, after 13 years, after being in an MVA.  

The Veteran's SSA records include a March 1994 award of SSA benefits based on an organic mental disorder and affective disorders, with his disability established as beginning in September 1992.  These SSA records include reports in August 1992 and in a 1993 report of a mental status examination which note that it seemed likely that he had major depression along with some cognitive impairment probably secondary to a closed head injury in his March 1992 truck accident.  

On VA psychiatric examination in August 1996 the examiner noted that the Veteran was an exceedingly vague historian.  The diagnosis was dementia, not otherwise specified (NOS).  

A private MRI of the Veteran's brain in 2003 was unremarkable.  During VA neuropsychological evaluation in 2007, he referenced his post-service MVA and stated that he had lost consciousness for at least one minute.  

Records from the Ear, Nose and Throat Surgical Group in 2010 include reports of audiometric testing reflecting threshold levels at 4,000 Hertz of 50 decibels or higher in each ear, as well as complaints of tinnitus.  The Veteran also related a positive history of noise exposure in the military.  The diagnosis was a bilateral high frequency sensorineural hearing loss.  

On VA examination in February 2011 the Veteran reported in-service noise exposure from explosions, gunfire, and big trucks, and occupational noise exposure that included driving an 18 wheeler for 15 years.  He reported that his tinnitus had been constant for the past two years.  On audiometric testing the Veteran met the requirements for a hearing loss in each ear under 38 C.F.R. § 3.385.  The diagnosis was a mild to moderately severe sensorineural hearing loss in the right ear and a mild to moderate sensorineural hearing loss in the left ear.  The examiner stated that the etiology of the tinnitus could not be determined without resorting to mere speculation.  He also noted that, on review of the claim file, the Veteran had had two audiological evaluations at service induction but no such report at the time of service separation was on file.  It was opined that it was less likely as not that the current hearing loss was due to or the result of noise exposure during military service because the audiometric configuration was atypical for noise-induced hearing loss.   

In an April 2011 statement the Veteran reported that on June 12, 1969, in Thailand he was only 5 feet from a rough terrain fork-lift when a tire on that vehicle exploded rendering him unconscious.  He had awakened in a hospital and had headaches, dizziness, dirt in his ears, bleeding from both ears, hearing loss, and tinnitus.  There after he continued to have hearing loss, tinnitus, memory loss, anger, headaches, and cognitive impairment.  

In April 2013, the Veteran's service representative submitted additional evidence, together with a waiver of initial consideration thereof by the AOJ, consisting of an article from the U.S. National Library of Medicine, National Institute of Health.  That article states that acoustic trauma is a common cause of a sensory hearing loss and such a loss could be caused by an explosion near the ear or gunshots, as well as long-term exposure to loud noises, such as loud music or machinery.  

III.  Analysis

A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.  38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as 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 U.S.C.A. §§ 1101, 1110; 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.

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Notably, however, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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, 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 Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in active service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159. 

In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature."  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009).  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Bilateral Hearing Loss
 
The Veteran contends that his exposure to loud noise in service, to include during combat, resulted in his current bilateral hearing loss.  Therefore, he alleges that service connection for such is warranted.    

As an initial matter, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA regulations.  38 C.F.R. § 3.385.  Specifically, such was most recently demonstrated at the February 2011 VA examination.  

Additionally, the Board finds that the Veteran had in-service noise exposure to weapons.  In this regard, he has averred that he was exposed to loud noise from weapons fire while in combat.  As noted, 38 U.S.C.A. § 1154(a) requires due consideration be given to all pertinent medical and lay evidence, even in cases not involving combat injury.  38 U.S.C.A. § 1154(b) provides that in the case of a combat Veteran lay or other evidence of service incurrence or aggravation is sufficient proof of the occurrence of an event but this deals with what happened during service and not the questions of either the existence of current disability or nexus to service.  Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed.Cir. 2009) (finding that 38 U.S.C.A. § 1154(b) does not require controlling weight be given to testimony as to the cause of a combat Veteran's death); see also 38 C.F.R. § 3.304(d).  Here, the Veteran received no awards, decorations, or citations indicative of combat service and his records are otherwise negative for such service.  
Accordingly, the Board concludes that the provisions of 38 U.S.C.A. § 1154(b) are not applicable.  Nevertheless, the Board acknowledges that the Veteran was exposed to loud noise during his military service from the operation of gunfire, including automatic weapons.  

The Board has first considered whether service connection is warranted for bilateral hearing loss on a presumptive basis.  However, the record fails to show that the Veteran manifested bilateral hearing loss to a degree of 10 percent within the one year following his active duty service discharge in July 1971.  As such, presumptive service connection is not warranted for bilateral hearing loss.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In connection with such determination, the Board has considered the Veteran's statements that he has experienced a continuity of hearing loss symptomatology since his discharge.  However, for the reasons discussed below, the Board finds such statements to be not credible. 

As indicated previously, the factors to consider in evaluating the credibility of a witness is the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

In the instant case, contradictory to the recently related history by the Veteran of continuous hearing loss since service, he repeatedly indicated in reports of medical history dated throughout his active and reserve service that he did not have a hearing loss.  As to this, in a 1991 medical history questionnaire in the reserves he reported having a hearing loss, but audiometric testing at that time showed that he did not have a hearing loss.  Moreover, in a medical history questionnaire in the reserves two years later, in 1993, he reported that he did not have a hearing loss and audiometric testing at that time again showed that he did not have a hearing.  Rather, it is not until 2010 that the Veteran first, and consistently thereafter, complained of hearing loss and this was after many years of receiving both private and VA treatment at which times he had many opportunities to report or complain of such, but did not.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care").  Therefore, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has experienced continuous hearing loss symptoms since service are inconsistent with the contemporaneous evidence.  Thus, the lay evidence of continuity of symptomatology is deemed not to be credible and, as such, is not a basis for service connection for sensorineural hearing loss as a chronic disease under 38 C.F.R. § 3.309(a).  

Therefore, the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure.  In this regard, the February 2011 VA examiner opined that it was less likely as not that the Veteran's present hearing loss was due to or the result of noise exposure in the military in that the audiometric configuration is atypical for a noise-induced hearing loss.  The Board accords great probative weight to the February 2011 VA examiner's opinion as such was predicated on an interview with the Veteran and a review of the record, to include the STR's.  Moreover, the VA examiner's opinion contained clear conclusions with supporting data as well as a reasoned medical explanation connecting the two.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Therefore, the Board accords great probative weight to the February 2011 VA examiner's opinion.  There is no contrary medical opinion of record.

The Board notes that the Veteran has contended on his own behalf that his current bilateral hearing loss is related to his military service.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet.App. 465, 469-70 (1994).  Lay evidence may also be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Court held a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, the question of the etiology of bilateral hearing loss extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).     

Therefore, the Board finds that, as the Veteran's hearing loss was first demonstrated many years after active service and is not related to any disease, injury, or incident of service, direct service connection is not warranted.  Moreover, as indicated previously, as the allegations regarding continuity of symptomatology are not credible, and there is no evidence that the Veteran manifested bilateral hearing loss to a compensable degree within one year of July 1971, presumptive service connection for bilateral hearing loss as a chronic disease is not warranted.  

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

Residuals of a Head Injury or TBI

The Veteran has alleged that he sustained a head injury or TBI on two occasions in service.  Specifically, he indicated that, on June 12, 1969, a tire blew out on a forklift and knocked him out and, approximately three months afterwards, a bomb exploded and he was knocked unconscious.  The Veteran contends that he has residuals of such head injuries or TBIs and, therefore, service connection is warranted.

While the Veteran is competent to report injuring his head during service, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest.  Specifically, the Veteran's STRs are negative for any complaints, treatment, or diagnoses relevant to a head injury or TBI, or any residuals thereof.  While the STRs reflect that the Veteran had been seen in June 1969 for dirt and cerumen in his ears and pain in the left eye, he did not report a head injury at such time.  Moreover, in reports of medical history dated throughout his active and reserve service, the Veteran specifically denied a history of a head injury.  The Board finds such evidence, made contemporaneous to service, to be more probative than his statements made decades after his service discharge and in connection with his claim for VA benefits.  

Moreover, the Board observes that the first evidence demonstrating a head injury and related residuals is dated after the Veteran's 1992 civilian MVA.  In this regard, only in recent years has the Veteran reported having sustained a head injury or TBI during active service.  Not only are the STRs silent for a head injury or TBI, but in the years prior to the 1992 post-service head injury, the Veteran had multiple opportunities to report a prior head injury and to claim service connection for any residuals thereof, just as he had filed claims in 1990 for other disabilities, but he did not do so.  See Williams, supra; Rucker, supra.

Furthermore, the record is void of any residuals of a head injury until after his civilian MVA in 1992.  In this regard, while the Veteran has had cervical myalgia, headaches, blackouts, memory difficulties, and cognitive impairment related to such head injury, there is no indication that such residuals are otherwise related to the Veteran's military service.  Specifically, all such residuals have been attributed to the Veteran's 1992 head injury and there is no record of similar complaints prior to such injury.  

The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board, however, finds in the instant case that the combination of the Veteran's specific denial of a head injury prior to 1992 and the fact that his post-service treatment records are negative for any complaints referable to head injury residuals until after his 1992 civilian MVA to be persuasive evidence against his claim.   

Therefore, as a head injury or TBI did not occur in service and any residuals associated with a head injury are not shown to be causally or etiologically related to any disease, injury, or incident in service, service connection for such disorder is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of a head injury or TBI.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for bilateral hearing loss is denied.  

Service connection for residuals of a head injury or a TBI is denied. 


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection for erectile dysfunction and tinnitus so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran asserts that his current erectile dysfunction as due to his service-connected diabetes.  On VA examination in June 2007 it was noted that the Veteran had had erectile dysfunction for several years, and was now taking Levitra.  He was able to have intercourse but indicated that it does not feel natural.  The examiner noted that the Veteran had a low testosterone level and that he had been placed on testosterone.  The examiner further indicated that, while the Veteran did have a diagnosed erectile dysfunction, it was not likely secondary to his service-connected diabetes because he had low testosterone levels.  

On VA genitourinary examination in September 2008 it was reported that the Veteran had a 10 year history of hypogonadism and a 4 to 5 year history of diabetes, which was generally well controlled.  He also had a long history of hypertension, dating back to 1999, and was treated for depression.  It was noted that Dr. S. A. had reported that the Veteran complained of erectile dysfunction even after testosterone level had been normalized.  In light of this, it could not be stated that the erectile dysfunction was secondary testosterone deficiency since the Veteran continued to complain of erectile dysfunction. He had very mild diabetes.  Risk factors for his erectile dysfunction were (1) his medication for depression, (2) medication for his hypertension, (3) his depression, (4) his hypertension, and (5) his diabetes.  Since the diabetes was so well controlled and was only of recent duration, based on the records, it would be the least likely of these factors contributing to the present erectile dysfunction.  

In a May 2009 treatment record, the Veteran's private physician, Dr. Gordon, assess the Veteran with erectile dysfunction secondary to diabetes mellitus. 

In this case, none of the medical opinions on file address whether the Veteran's service-connected diabetes mellitus type II has aggravated his erectile dysfunction, even if the diabetes has not caused the erectile dysfunction.  Accordingly, an addendum medical opinion is needed to determine whether the Veteran's erectile dysfunction is caused or aggravated by his diabetes mellitus type II.  

The Board also finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's tinnitus.  In this regard, the February 2011 VA examiner stated that the etiology of the tinnitus could not be determined without resorting to mere speculation.  However, she did not offer a rationale for her opinion.  In light of the Veteran's acknowledged in-service noise exposure and current complaints of tinnitus, the claims file should be referred to a different VA examiner for an addendum opinion regarding whether his tinnitus is related to his in-service noise exposure. 

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims file and a copy of this remand to an appropriate medical professional so as to offer an opinion regarding the etiology of the Veteran's erectile dysfunction.  The examiner shall note in the examination report that the claims folder and the Remand have been reviewed.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

After reviewing the claims file, to include the June 2007 and September 2008 VA examination reports, Dr. Gordon's May 2009 assessment, and the article submitted by the Veteran's representative in April 2013, the examiner should render an opinion as to whether the Veteran's erectile dysfunction is at least as likely as not caused OR aggravated by his diabetes mellitus.  
 
A rationale for any opinion offered should be provided.

2.  Forward the claims file and a copy of this remand to an appropriate medical professional other than the audiologist who conducted the February 2011 audiological examination so as to offer an opinion regarding the etiology of the Veteran's tinnitus.  The examiner shall note in the examination report that the claims folder and the Remand have been reviewed.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

After reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's tinnitus is related to his military service, to include his acknowledged in-service noise exposure.   
 
A rationale for any opinion offered should be provided.

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  Relevant to the claims other than the Veteran's psychiatric claim, such claims should be considered on both a direct basis and due to an undiagnosed illness.  If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

These claims 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).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs