Citation Nr: 1320896 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-47 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for residuals of urethra surgery, to include low sperm count and testosterone deficiency. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1969 to July 1971, and from November 1974 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. On the November 2009 VA Form 9, the Veteran requested a personal hearing before the Board to be held at the local RO (i.e., a Travel Board hearing). In April 2011, the Veteran was notified of the scheduled Board hearing; however, two days before the hearing, he withdrew the hearing request and asked to proceed with the appeal without a hearing. 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. The Veteran was exposed to loud noise during service. 2. The Veteran did not have chronic symptoms of right ear hearing loss during service. 3. The Veteran did not have continuous symptoms of right ear hearing loss since service. 4. Right ear sensorineural hearing loss did not manifest within one year of service separation. 5. The Veteran currently has a right ear hearing loss disability for VA disability compensation purposes. 6. The Veteran's right ear hearing loss disability is related to in-service noise exposure. 7. The Veteran was diagnosed with urethra stricture and underwent urethra surgery during active service. 8. The Veteran does not have disabling residuals of urethral stricture disease or urethra surgery. 9. The Veteran's genitourinary complaints are related to non-service-connected benign prostatic hypertrophy (BPH) and active hypogonadism. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, right ear sensorineural hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for residuals of urethra surgery, to include low sperm count and testosterone deficiency, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA 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 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the July 2008 notice letter sent prior to the initial denial of the claims, the RO apprised the Veteran of the information and evidence necessary to substantiate the claims for service connection, the information and evidence that he was to provide, and the information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established, which satisfied Dingess notice requirements. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claims, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the claims. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the claims, and the record contains sufficient evidence to make a decision on the claims. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the Veteran's claims have been obtained or otherwise submitted. There are no additional treatment records found in the Veteran's Virtual VA file. In July 2008, the Veteran underwent VA medical examinations in connection with the claims. Although the July 2008 VA audiological examiner did not consider all relevant evidence in the Veteran's service treatment records and the medical opinion is not adequate, service connection for right ear hearing loss is being granted for reasons explained below; therefore, no further medical examination or medical opinion is needed. Regarding service connection for the claimed residuals of urethral surgery, the July 2008 VA medical examiner considered the Veteran's past and present genitourinary complaints and treatment, performed a clinical evaluation of the Veteran, and found that the Veteran had no residuals from the urethral stricture disease status post urethrotomy in 1970 and the repeat urethral dilation in 1977. The July 2008 VA medical examiner based the medical diagnosis and opinion on an accurate medical history, consideration of the Veteran's current complaints and treatment, and the findings shown on the medical examination; therefore, the Board finds that the medical examination and medical opinion are adequate. Neither the Veteran nor the representative has made the RO or the Board aware of any notice defect or any additional evidence relevant to the appeal that needs to be obtained. Given the foregoing, the Board concludes that the Veteran has been provided with proper notice and all relevant facts have been properly and sufficiently developed in this appeal. No further notice or development is required. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence in the record. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Veteran's currently diagnosed right ear sensorineural hearing loss is considered a "chronic disease" under 38 C.F.R. § 3.309(a) as an organic disease of the nervous system; therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Residuals (current disability) of the Veteran's urethral stricture and related urethral surgery are not shown; therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable with respect to that claim. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system (which includes sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service Connection for Right Ear Hearing Loss The Veteran contends that he currently suffers from right ear hearing loss due to military noise exposure. He asserts that he was exposed to the loud noise of engines while training and performing his duties as a light vehicle driver, as well as the loud sounds of weaponry and combat while stationed in Vietnam. The Veteran has consistently denied having any other noise exposure. After a review of the evidence, the Board finds that the Veteran currently has a right ear hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. At the July 2008 VA audiological examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 55 The speech recognition score with the Maryland CNC Test was 96 percent for the right ear. There is no indication that the audiometric results are unreliable or otherwise inadequate. The audiologist also noted that the Veteran demonstrated moderately severe sensorineural hearing loss in the right ear at 4000 Hertz. The above evidence sufficiently establishes a "disability" of current right ear hearing loss as defined by 38 C.F.R. § 3.385 (referred to as "impairment"), as the auditory threshold at the 4000 Hz is 40 decibels or greater. The question of whether there is a current right ear hearing loss disability for VA purposes is not in dispute; therefore, the Board will next consider whether hearing loss was incurred in service. The Board next finds that the evidence shows that the Veteran was exposed to loud noises (acoustic trauma) during service. The Veteran's DD Form 214 shows that he had Vietnam service from January 1970 to April 1970 and served as a fire fighter, lance missile crewman, and tractor-trailer truck driver during his periods of service. The Veteran has reported being exposed to loud noise during his period of service. The Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances of his service and is, therefore, credible. The evidence does not demonstrate chronic symptoms of sensorineural hearing loss during service or continuous symptoms of sensorineural hearing loss since service separation. The Veteran's service treatment records are negative for chronic symptoms of a right ear hearing loss disability in service, and the lay and medical evidence does not show continuous symptoms of a right ear hearing loss disability since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post-service symptoms. Additionally, the evidence does not show that the Veteran's right ear sensorineural hearing loss disability manifested to a compensable (at least 10 percent) degree within one year of service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. On the question of nexus between current right ear sensorineural hearing loss and service, the Board finds that the evidence is in equipoise as to whether the Veteran's right ear hearing loss disability is related to the in-service noise exposure. In July 2008, the Veteran's treating VA audiologist wrote that the Veteran's hearing loss was consistent with noise exposure. The VA treating audiologist further opined that, since the Veteran denied having any occupational or recreational noise exposure, the hearing loss was as likely as not due to military noise exposure. The Board notes that the medical opinion of the treating VA audiologist is the only adequate medical opinion of record. The Veteran underwent a VA audiological examination in connection with the claim in July 2008; however, the VA audiological examiner stated that he was unable to assess the relationship between the Veteran's right ear hearing loss and military noise exposure without resorting to speculation due to normal hearing in 1982 and no audiometric records closer to service separation. Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that, in order to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The July 2008 VA medical opinion is inadequate because the VA audiological examiner did not consider the significance of the abnormal finding of right tympanic membrane tympanosclerosis at the May 1977 service medical examination. Tympanosclerosis is defined as the presence of masses or hard, dense connective tissue around the auditory ossicles. See Dorland's Illustrated Medical Dictionary 1976 (30th ed. 2003). Thus, there is credible evidence of the Veteran's military noise exposure, and the Veteran currently demonstrates a right ear hearing impairment consistent with noise exposure. The Veteran's treating VA audiologist has linked the Veteran's current right ear hearing impairment to in-service noise exposure, and there is no other adequate medical opinion of record. Upon consideration of the foregoing and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for right ear sensorineural hearing loss is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection Analysis for Residuals of Urethral Surgery The Veteran contends that he currently suffers from various genitourinary problems such as dribbling, weakened urinary stream, retrograde ejaculation, and the symptomatology are residuals of the in-service urethral stricture and urethra surgery. He has also asserted that the urinary stream never resumed its strength after the in-service urethra surgery, and he has had a weakened urinary stream since service. The Veteran's diagnosis and treatment for urethra stricture during service are well documented in the service treatment records. In February 1970, the Veteran was diagnosed with bulbus urethra stricture and diverticulum of the bulbus urethra and underwent an external urethrotomy and pandendoscopy. A urethral dilation was later performed in October 1977. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran has disabling residuals of the in-service urethra stricture and surgery. When the Veteran underwent the July 2008 VA medical examination, he reported that he currently had low testosterone and libido, retrograde ejaculation, and various urinary symptoms such as difficulty starting stream and weakened or intermittent stream. After considering the physical findings shown on examination of the Veteran, to include test results, and the Veteran's genitourinary complaints and relevant medical history, the VA medical examiner found that the Veteran's urethral stricture disease status post urethrotomy in 1970 and repeat urethral dilation in 1977 had resolved with no residuals. The VA medical examiner attributed the Veteran's dribbling and weakened urinary stream to a diagnosis of BPH and the incomplete erectile dysfunction to the diagnosis of active hypogonadism. Because the VA medical examiner had adequate data on which to base the medical opinion, and there is no adequate medical opinion to the contrary of record, the July 2008 VA medical opinion of great probative value. The Board recognizes that private treatment records dated in February and March of 2008 include the Veteran's complaints of slow urinary stream, low libido, and problems with ejaculation, as well as the reported history of urethral stricture and urethrotomy in service. While the private physician considered the Veteran's complaints and reported history and wrote that the Veteran may have a fixed lesion such as a recurrence of urethral stricturing, the medical opinion was speculative. Not only did the use of the term "may" indicate that the private physician's opinion was speculative, but also the fact that he alternatively noted that the Veteran "could have" some urinary outlet obstruction. The private physician also wrote that he would need to perform cystourethroscopy for further evaluation if the Veteran's urinary stream continued to slow. Such statements collectively show that the private physician was considering several possible etiologies for the Veteran's genitourinary complaints but did not have sufficient information to determine the cause of the symptoms at the time. The March 2008 private treatment record shows that a cystoscopy to examine the urethra was not performed. In light of the foregoing, the Board finds that the private treatment records, which suggested that the Veteran's complaints possibly may be due to recurrence of urethral stricture, are of far lesser probative value than the July 2008 VA medical opinion. As stated above, the Veteran has asserted that the urinary stream never resumed its strength after the in-service urethra surgery, and he has had a weakened urinary stream since service. See written statement submitted in November 2009. However, the Board does not find the assertion to be credible when weighed against other, more credible evidence of record, which show no current disabling residuals. Instead, the weight of the lay and medical evidence of record demonstrates that the Veteran does not have disability residuals of the in-service urethral stricture disease or urethra surgery. Service treatment records dated after the Veteran's urethral dilation in October 1977 show complaint and treatment for several physical ailments; however, there is no further complaint, finding, or treatment for genitourinary problems. Also, on the service report of medical history completed in April 1982 and years after the Veteran's urethra surgery, the Veteran checked "Yes" when asked if he then had or ever had had frequent or painful urination; however, in the portion of the report designated for the physician's summary and elaboration of all pertinent data, it was noted that the Veteran had a stricture of the bulbous urethra in Japan that was "repaired." Significantly, the Veteran did not report having any continued urinary symptoms, and the genitourinary system was clinically evaluated as normal at the April 1982 service medical examination. The evidence contemporaneous to the Veteran's period of active service, which shows no genitourinary complaints after the October 1977 dilation, is deemed particularly credible because it was generated during service and is more likely to be accurate and uninfluenced by the desire for pecuniary gain. Consequently, the Board finds that the evidence contemporaneous to service far outweighs the Veteran's unsupported lay assertion of having residuals, which was first made when pursuing VA disability compensation benefits. Also, when Veteran filed claims for VA disability benefits at various times during the years after service (e.g., in March 1989, January 1990, and December 1994), he did not file a claim of service connection for urethra surgery residuals or any genitourinary disability. The Veteran also did not complain of genitourinary problems at any of the multiple VA medical examinations performed during the course of his pursuit of the VA disability compensation benefits, and no genitourinary disability was otherwise detected on the medical examinations. The Veteran specifically denied having any urinary incontinence at the April 2004 VA spine examination, and made no mention of any genitourinary problems. If the Veteran had continued to have difficulty with a weakened urinary stream since service, as he now contends, it is likely that he would have filed a disability claim for residuals of the urethra surgery at the time he sought disability compensation for other disabilities he believed were related to service or otherwise mentioned having such problems at the VA medical examinations. The fact that he did not identify any such residuals or state that he had any genitourinary complaints at those times further weighs against the credibility of the assertion that he continued to experience urinary problems after the urethra surgery. The Veteran's first mention of having residual urinary problems since service was close in time to when he filed his VA compensation claim in 2008; the more credible and probative evidence weighs against the assertion. The Veteran has complained of currently having difficulty starting the urinary stream, intermittent dribbling, straining to urinate, weakened urinary stream, and retrograde ejaculation and is competent to report his experience of the genitourinary symptomatology. The Board finds the Veteran's account of current genitourinary symptoms to be credible, particularly in light of evidence showing that he has sought medical treatment for the symptomatology; however, the Veteran, as a lay person, is not competent to attribute the symptoms to a medical diagnosis or identify the symptoms as residuals of the urethral stricture and related urethra surgery. The July 2008 VA medical examiner attributed the Veteran's complaints to non-service-connected BPH and hypogonadism and found that the urethral stricture status post urethra surgery had resolved with no residuals. Furthermore, the Veteran's assertion that he has experienced urinary problems since service is not credible when weighed against other, more probative evidence of record, as discussed above. For these reasons, the Board affords the Veteran's opinion that the current genitourinary symptoms are residuals of the urethra stricture and urethra surgery little probative value. Thus, although the Veteran was treated for urethral stricture during service and has current genitourinary complaints, the current genitourinary symptoms have not been diagnosed, and have not been found to be residuals of, or otherwise attributed to, the in-service urethral stricture or the surgical treatment related thereto by a competent medical professional. The genitourinary symptoms that were claimed as residuals of the urethra surgery have been attributed by the weight of the competent evidence to non-service-connected disorders of BPH and hypogonadism. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is of no advantage. The weight of the evidence demonstrates that symptoms of the Veteran's urethral stricture status post urethra surgery have resolved, and the Veteran does not currently have disabling residuals of the urethra surgery. Therefore, the preponderance of the evidence is against the claim for service connection for residuals of urethra surgery, and the claim must be denied. In reaching the conclusion, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue; however, because the preponderance of the evidence is against the Veteran's claim for service connection for residuals of urethra surgery, that doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right ear sensorineural hearing loss is granted. Service connection for residuals of a urethra surgery, to include low sperm count and testosterone deficiency, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs