Citation Nr: 1324867	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  08-13 195A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for a traumatic brain injury (TBI).

2.  Entitlement to service connection for erectile dysfunction, including as secondary to service-connected diabetes mellitus.

3.  Entitlement to service connection for a left hand disability.  

4.  Entitlement to service connection for bilateral hearing loss.  

5.  Entitlement to service connection for a disability of the spine.

6.  Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus.

7.  Entitlement to service connection for a bilateral hip disability.

8.  Entitlement to service connection for a respiratory disability due to asbestos exposure, to include asbestosis.

9.  Entitlement to service connection for ischemic heart disease, claimed as due to Agent Orange exposure.  

10.  Entitlement to an increased disability rating in excess of 10 percent for diabetes mellitus.  

11.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Sherrard, Counsel


INTRODUCTION

The Veteran, who is the Appellant in this case, had active service from January 1965 to November 1967.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from December 2006 and July 2009 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at an April 2013 videoconference hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is associated with the claims folder.

The Board notes that the Veteran's initial claim for service connection filed in August 2006 included only a claim for a back disability.  Then, in August 2010, he filed an additional claim for a neck disability stemming from the same incident in service.  The RO combined the back and neck claims and adjudicated them together in the September 2010 Supplemental Statement of the Case.  Therefore, the Board has characterized the issue as a claim for a disability of the spine as it appears on the first page of this decision.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.

The issue of entitlement to service connection for a left hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  There was no event, disease, or injury resulting in a TBI during active service, symptoms of a TBI were not unremitting in service, symptoms of a TBI have not been unremitting since service separation, and the Veteran does not have a current diagnosis of a TBI based on the best evidence.

2.  There was no event, disease, or injury manifesting erectile dysfunction during active service, symptoms of erectile dysfunction were not unremitting in service, symptoms of erectile dysfunction have not been unremitting since service separation, and the Veteran's erectile dysfunction is not causally related to or permanently worsened by the service-connected diabetes mellitus.

3.  The Veteran experienced acoustic trauma in service, but did not sustain a disease or injury (other than acoustic trauma) of the bilateral ears in service; symptoms of bilateral hearing loss were not chronic in service or continuous since service separation; symptoms of bilateral hearing loss did not manifest to a compensable degree within one year of separation; and the Veteran's bilateral hearing loss is not related to his active service.

4.  There was no event, disease, or injury manifesting a disability of the spine during active service, symptoms of a spine disability were not chronic in service, symptoms of arthritis of the spine did not manifest to a compensable degree within one year of separation, and symptoms of a spine disability have not been chronic since service separation.

5.  Hypertension was diagnosed several months after service separation, and symptoms of hypertension have been chronic since service separation.

6.  At the January 2012 RO hearing and April 2013 videoconference hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal on the issues of entitlement to service connection for a bilateral hip disability, respiratory disability, and ischemic heart disease, to a higher disability rating for his service-connected diabetes mellitus, and to a TDIU.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a TBI have not been met.  38 U.S.C.A. 
§§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

2.  The criteria for service connection for erectile dysfunction have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012).

3.  The criteria for service connection for bilateral hearing loss are not met.  
38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 

4.  The criteria for service connection for a disability of the spine are not met.  
38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

5.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hypertension have been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

6.  The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to service connection for a bilateral hip disability.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

7.  The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to service connection for a respiratory disability, to include asbestosis.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. 
§ 20.204 (2012).

8.  The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to service connection for ischemic heart disease.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

9.  The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to an increased disability rating for service-connected diabetes mellitus.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

10.  The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to a TDIU.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection Laws and Regulations

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; 38 C.F.R. § 3.303(a).  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, such as hearing loss, arthritis, or hypertension, 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).

Unlike the claimed hearing loss, arthritis of the spine, and hypertension, the remainder of the conditions at issue are not "chronic diseases" listed under 
38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to those conditions.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also 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).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as organic diseases of the nervous system (e.g., sensorineural hearing loss), arthritis, or hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service.  Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2012).  

Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met.  
38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C.A. § 1116(f).  

Pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure.  The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease.  The NAS was required to submit reports of its activities every two years.

The Secretary, under the authority of the Agent Orange Act of 1991 and based on studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 75 Fed. Reg. 32,540 (June 8, 2010); 75 Fed. Reg. 81,332 (Dec. 27, 2010); 77 Fed. Reg. 47,924-28 (August 10, 2012).

When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).  If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee, 34 F.3d at 1043-44.

In this case, the Veteran has contended that a number of his claimed disabilities were caused by exposure to Agent Orange.  His service personnel records confirm that he served in Vietnam from December 1966 to November 1967; therefore, he is entitled to a presumption of exposure to herbicides.  38 U.S.C.A. § 1116(f) (West 2002).  However, because the Veteran's claimed conditions of TBI, erectile dysfunction, hearing loss, disability of the spine, and hypertension are not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus may not be presumed as a matter of law.  

Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations to this case, the Board is obligated to fully consider the Veteran's service connection claim on a direct basis.  See Combee at 1043-1044.

In addition, service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. 
§ 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 
38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms.  Id.  To prevail on the theory of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 

Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended.  See 71 Fed. Reg. 52,744 (2006).  The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation.  Regardless of whether the case is considered under the old or new regulation, based upon the facts in this case, neither version is more favorable, and the regulatory change does not affect the outcome herein.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).  The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection for a TBI

The Veteran contends that he has current residuals of a traumatic brain injury that occurred during active service.  Specifically, he testified at the April 2013 Board hearing that he was involved in a car accident while stationed in Vietnam during which he was almost knocked unconscious and after which he experienced ringing in his ears.  

After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that the Veteran did not incur an injury, event, or disease manifesting a TBI during active service.  Further, the evidence demonstrates that symptoms of a TBI were not unremitting in service.  

While the Veteran is competent to report the occurrence of the car accident during service, the service treatment records are entirely negative for treatment following a car accident or treatment for a head injury of any kind.  In sum, the service treatment records are negative for any report, symptoms, findings, treatment, or diagnosis of a TBI or head injury.  

Indeed, at the November 1967 separation examination, the Veteran checked "no" next to "history of head injury" on his Report of Medical History, providing highly probative evidence against this claim.  

The Board next finds that the preponderance of the evidence demonstrates that symptoms of a TBI have not been unremitting since separation from active service in November 1967.  As noted above, the November 1967 separation examination report is negative for any symptoms of a TBI or head injury.  Following service separation in November 1967, the evidence of record does not show any complaints, diagnosis, or treatment for a TBI at all (other than the Veteran's claim for service connection filed in May 2009).  

The absence of any post-service complaints, findings, diagnosis, or treatment for a TBI or head injury after service separation is one factor that tends to weigh against a finding of unremitting symptoms of a TBI after service separation.  See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible).    

Additional evidence demonstrating that TBI symptoms have not been unremitting since service separation includes private treatment records from October 2007 and February 2009 in which it is specifically noted that an examination for a head injury revealed no evidence of a head injury.    

With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had TBI symptoms since separation from service in November 1967, the Board finds that, while the Veteran is competent to report the onset of TBI symptoms, his recent reports of unremitting TBI symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable.  See Charles v. Principi, 16 Vet. App. 370 (2002).  The Board finds that the statements of the Veteran as to unremitting TBI symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any findings or diagnoses of a TBI or head injury, private treatment notes from 2007 and 2009 that indicate no evidence of a head injury, the lack of any post-service documentation of treatment or diagnosis of a TBI after service separation, and the Veteran's claim for service connection for other disabilities in 2006 with no mention of a TBI or head injury.  

The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection for multiple disabilities in August 2006, but did not mention any TBI symptoms at that time.  This suggests to the Board that there was no pertinent TBI symptomatology at that time.  While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service.  In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits.  In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted.  Thus, the Veteran's inaction regarding a claim for a TBI, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a TBI in service, or the lack of TBI symptomatology at the time he filed the claim, or both. 

Finally, the Board finds that the preponderance of the evidence demonstrates that there is no current diagnosis of a TBI.  The Veteran was afforded a VA examination in February 2010.  After reviewing the Veteran's claims file and conducting a physical examination and interview of the Veteran, the VA examiner opined that there was no current medical evidence of a TBI, and pointed to the negative service treatment records in support of his opinion that the Veteran did not suffer a TBI during active service.  The February 2010 VA opinion is of  significant probative value because it is factually accurate, as it appears the VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning.  There are no contrary opinions of record.

The Board acknowledges the Veteran's testimony at the April 2013 Board hearing that the VA examiner did not ask him about the claimed car accident during service during the interview portion of the examination.  However, even if the VA examiner had taken the car accident into consideration, the service treatment records remain negative for any evidence of a head injury or head injury symptoms, and the current examination revealed no symptoms of a TBI.  Therefore, the Board finds the examination is adequate, and, in fact, highly probative evidence against the claim.  

In light of the 2010 VA opinion and lack of documentation of any report, findings, treatment, or diagnosis of a TBI following service separation, as well as the 2007 and 2009 private treatment notes showing no evidence of a head injury, the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of a TBI.  As a result, the claim must be denied.  

Most importantly, in the absence of proof of a present disability there can be no valid claim.  Brammer, 3 Vet. App. at 225.  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, 321 (2007).  However, where the overall record fails to support a current diagnosis of the claimed disability, as in this case, that holding would not apply. 

In this case, the best evidence simply does not indicate that a disability currently exists or that the Veteran has ever had a chronic disability.  Service and post-service evidence provides particularly negative evidence against this claim, outweighing the Veteran's statements.

Even if the Board assumes a TBI currently exists, the preponderance of the competent evidence demonstrates no relationship between the Veteran's claimed TBI and his military service, including no credible evidence of either an in-service disease or injury resulting in a TBI, unremitting symptoms of a TBI during active service, unremitting symptoms of a TBI following service separation, or a current disability resulting from a TBI.  

Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a TBI, and outweighs the Veteran's more recent contentions regarding in-service unremitting TBI symptoms and post-service TBI symptoms.  The objective medical evidence in this case not only does not support the Veteran's claim, but provides highly probative evidence against the claim, undermining the Veteran's credibility with the Board.    

For these reasons, service connection for a TBI must be denied.  As the preponderance of the evidence weighs against the Veteran's claim for service connection for a TBI, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Service Connection for Erectile Dysfunction

The Veteran in this case contends that he has erectile dysfunction that was either incurred during active service or caused or aggravated by his service-connected diabetes mellitus.  Specifically, with regard to direct service incurrence, he avers that the erectile dysfunction was caused by exposure to Agent Orange.  

As discussed above, erectile dysfunction is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), so a medical nexus may not be presumed as a matter of law.  However, the Board will still consider whether the erectile dysfunction is directly related to service, or whether it was caused or aggravated by the service-connected diabetes mellitus.

After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that the Veteran did not incur an injury, event, or disease manifesting erectile dysfunction during active service.  Further, the preponderance of the evidence demonstrates that symptoms of erectile dysfunction were not unremitting in service.  The service treatment records are entirely negative for any report, symptoms, findings, treatment, or diagnosis of erectile dysfunction, nor has the Veteran contended that symptoms of erectile dysfunction began during active service.  Indeed, the November 1967 separation examination report is negative for any findings or diagnosis of a genitourinary abnormality.  

The Board next finds that the preponderance of the evidence demonstrates that symptoms of erectile dysfunction have not been unremitting since separation from active service in November 1967.  As noted above, the November 1967 separation examination report is negative for any symptoms of erectile dysfunction.  Following service separation in November 1967, the evidence of record does not show any complaints, diagnosis, or treatment for erectile dysfunction at all, until the Veteran filed his claim for service connection in May 2009.  He was afforded a VA examination in December 2009, at which he stated that he had had no interest in sex since he divorced his wife in 1991, and that was one of the reasons she left him.  He further stated he felt his lack of interest in sex was related to the medications he was taking, and that he had not sought treatment for erectile dysfunction.  The Board notes that the Veteran's failure to relate his lack of libido to either active service or to a service-connected disability at the VA examination is highly probative evidence against his claim.  Further, he stated at the VA examination that his symptoms began in 1991, still many years after service separation.       

The absence of any post-service complaints, findings, diagnosis, or treatment for erectile dysfunction for 42 years after service separation until 2009 is another factor that tends to weigh against a finding of unremitting symptoms of erectile dysfunction after service separation.  See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible).    

Although the Veteran has not specifically contended that he has had unremitting symptoms of erectile dysfunction since service separation, to the extent that his statements made in the context of the current claim can be interpreted as such, the Board finds that, while the Veteran is competent to report the onset of erectile dysfunction symptoms, his recent reports of unremitting erectile dysfunction symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable.  See Charles, 16 Vet. App. 370.  The Board finds that the statements of the Veteran as to unremitting erectile dysfunction symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any findings or diagnoses of erectile dysfunction, the lack of any post-service documentation of treatment or diagnosis of erectile dysfunction for 42 years after service separation until 2009 (at which time he reported that he had had symptoms since 1991, still many years after service separation), and the Veteran's claim for service connection for other disabilities in 2006 with no mention of erectile dysfunction.  

As above, the Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage, 10 Vet. App. at 496); however, here, the Veteran filed a claim for service connection for multiple disabilities in August 2006, but did not mention any erectile dysfunction symptoms at that time.  This suggests to the Board that there was no pertinent erectile dysfunction symptomatology at that time.  While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service.  In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits.  In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted.  Thus, the Veteran's inaction regarding a claim for erectile dysfunction, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain erectile dysfunction in service, or the lack of erectile dysfunction symptomatology at the time he filed the claim, or both.

In sum, based on the evidence of record, the preponderance of the competent evidence demonstrates no relationship between the Veteran's current erectile dysfunction and his military service, including no credible evidence of either an in-service disease or injury manifesting erectile dysfunction, unremitting symptoms of erectile dysfunction during active service, or unremitting symptoms of erectile dysfunction following service separation, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion.  

The Veteran is also contending that his erectile dysfunction was caused or aggravated by his service-connected diabetes mellitus.  To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17.  

Service connection has been granted for diabetes mellitus from December 2007.  However, the Board finds that the preponderance of the evidence demonstrates no relationship between the Veteran's erectile dysfunction and his service-connected diabetes mellitus.  

In the December 2009 VA examination report, discussed above, the VA examiner also opined that the erectile dysfunction was not caused by or related to his service-connected diabetes mellitus.  The VA examiner noted that the Veteran's testosterone level was low, showing secondary hypogonadism.  Further, the VA examiner reasoned that the Veteran had a diagnosis of diabetes for only two years, but there had been no blood glucose levels that were abnormal since starting treatment.  Thus, the VA examiner did not find a current diagnosis of diabetes.  The examiner stated that there were no complications of diabetes with normal glucose levels, and that the cause of the Veteran's erectile dysfunction was likely secondary hypogonadism.    

The 2009 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale.  The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion.  There are no contrary medical opinions of record, nor does the medical evidence otherwise suggest a relationship between the Veteran's erectile dysfunction and his service-connected diabetes mellitus.  

Regarding the Veteran's statements as to the cause of his erectile dysfunction, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson, 581 F.3d at 1316 (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau, 492 F.3d 1372).  However, in this case, the cause of the Veteran's erectile dysfunction involves a complex medical etiological question because it deals with the origin and progression of the Veteran's genitourinary system, and disorder of such internal and complex disease process is diagnosed primarily on clinical findings and physiological testing.  The Veteran is competent to relate symptoms of erectile dysfunction that he experienced at any time, but is not competent to opine on whether there is a link between any currently diagnosed erectile dysfunction and a service-connected disability, including diabetes mellitus, because such diagnosis requires specific medical knowledge and training.  See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer).  For these reasons, the Board finds that preponderance of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding the relationship between his erectile dysfunction and service-connected diabetes mellitus.  Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's erectile dysfunction was caused or aggravated by any service-connected disability.    

For these reasons, service connection for erectile dysfunction must be denied.  As the preponderance of the evidence weighs against the Veteran's claim for service connection for erectile dysfunction, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied.  See 38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102.

Service Connection for Bilateral Hearing Loss

The Veteran contends that his current bilateral hearing loss is related to acoustic trauma during active service.  Specifically, he avers that, while serving in the infantry in Vietnam, he was exposed to the noise of various weapons, including 175 mm howitzers, twin 40 mm guns, 105 mm guns, mortar attacks, explosions, 50-caliber machine guns, and 60-caliber guns.  He was given one set of rubber earplugs, but if he lost it in the field, it was not replaced.  He testified at the April 2013 Board hearing that, although he first noticed hearing loss during active service, he did not seek treatment for it until 10 to 15 years after service separation.       

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, 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.  Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).

The Board finds that the evidence demonstrates that the Veteran was likely exposed to acoustic trauma in service.  His DD Form 214 shows that he received a Sharpshooter Badge, and that his Military Occupational Specialty was infantry communications.  Further, his service personnel records confirm that he served in the infantry in Vietnam.  Thus, the Board finds his contentions regarding military noise exposure to be credible.

Next, after a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that, other than acoustic trauma, the Veteran did not sustain an injury or disease of the ears during active service, and that symptoms of hearing loss were not chronic during active service.  In short, service treatment records do not demonstrate hearing loss complaints, findings, diagnosis, or treatment, or show any evidence of hearing loss (thresholds above 20 decibels).  See Hensley, 5 Vet. App. at 157.  

At the January 1965 enlistment examination, an audiogram revealed puretone thresholds of 5, 0, 0, 0, and -5 decibels in the right ear, and 15, 0, 5, 5, and 5 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively.  The Veteran also checked "no" next to "hearing loss" on the Report of Medical History at that examination.  (Note: Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.)

It does not appear that an audiogram was conducted at the November 1967 separation examination.  However, the Veteran checked "no" next to "hearing loss" on the Report of Medical History.  The Veteran's failure to report any hearing loss at the time of separation provides probative evidence against this claim.    

The Board also finds that the preponderance of the evidence demonstrates that hearing loss did not manifest to a compensable degree within one year of service separation.  The preponderance of the evidence demonstrates no hearing loss symptoms during the one year period after service, and no diagnosis or findings of hearing loss of any severity during the one year post-service presumptive period.  See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).  The evidence shows the first documented complaint and assessment of hearing loss 42 years after service separation in 2009, as discussed below.  For these reasons, the Board finds that hearing loss, first diagnosed in 2009, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hearing loss are not applicable in this case.  38 C.F.R. §§ 3.307, 3.309.

Next, the Board finds that the preponderance of the evidence demonstrates that symptoms of hearing loss have not been continuous since service separation.  At the November 1967 service separation examination, as discussed above, the Veteran denied any symptoms of hearing loss.  The first documented complaint of hearing loss is the Veteran's August 2006 claim for service connection.  However, the first diagnosis and assessment of a hearing loss disability is in 2009 for the left ear and 2010 for the right ear.  Indeed, two audiograms conducted in 2009 show some degree of hearing loss but do not demonstrate a hearing loss disability (except in the left ear at the later of the two examinations, as described below).  

An undated audiogram submitted by the Veteran in May 2009 demonstrates puretone thresholds of 20, 20, 15, 20, and 25 decibels in the right ear, and 20, 25, 20, 20, and 30 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Since one of the puretone thresholds in each ear is above 20, the undated audiogram shows some degree of hearing loss under Hensley, but does not demonstrate a hearing loss disability under VA regulations.

Next, at a December 2009 VA audiological examination, an audiogram demonstrated puretone thresholds of 10, 15, 20, 15, and 30 decibels in the right ear, and 10, 20, 25, 25, and 55 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Thus, again, while some degree of hearing loss is shown in the right ear, a right ear hearing loss disability is not demonstrated.  However, a left ear hearing loss disability is demonstrated.

A right ear hearing loss disability was first documented at a June 2010 audiogram, which showed puretone thresholds of 15, 20, 25, 30, and 50 decibels in the right ear, and 30, 40, 40, 40, and 65 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively.

Thus, based on the December 2009 and June 2010 audiogram results, the Board finds that the Veteran has a current bilateral hearing loss "disability" under the criteria of 38 C.F.R. § 3.385.  

With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had hearing loss symptoms since separation from service in November 1967, the Board finds that, while the Veteran is competent to report the onset of his hearing loss, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable.  See Charles, 16 Vet. App. 370.  The Board finds that the Veteran's statements as to chronic hearing loss symptoms in service and continuous hearing loss symptoms after service are not accurate because they are outweighed by other evidence of record that includes the absence of in-service hearing loss complaints or symptoms, the Veteran's denial of hearing loss symptoms at the November 1967 service separation examination, and the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hearing loss for 39 years after service when the Veteran filed his service connection claim, as well as the lack of a diagnosis of a hearing loss disability until 2009. 

In weighing the Veteran's statements of continuity of symptomatology made in conjunction with the current claim for VA compensation against the lack of continuity of symptomatology in the record from 1967 to 2006, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for 39 years is also one additional factor, along with other lay and medical evidence stated above, that the Board has considered in finding that the Veteran's recent statements of continuity are less probative than the other evidence of record on the question of continuity of symptomatology after service.  See Buchanan, 451 F.3d at 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). 

Additional evidence demonstrating that hearing loss symptoms have not been continuous since service separation in November 1967 includes an October audiogram conducted in the 1970s (the last digit of the year is cut off) that demonstrates puretone thresholds of 15, 15, 10, 10, and 25 decibels in the right ear, and 10, 10, 15, 10, and 15 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Although the audiogram demonstrates some hearing loss in the right ear under Hensley, the Veteran specifically denied any hearing loss problems at the examination, providing highly probative evidence against his claim.  In addition, an August 2009 VA treatment note indicates that the Veteran reported that his hearing was good.    

The Board further finds that the preponderance of the evidence demonstrates that the Veteran's currently diagnosed hearing loss is not related to his active service, specifically including the noise exposure during service.  In the December 2009 VA audiological opinion, which weighs against the Veteran's claim, the examiner opined that, even recognizing the Veteran's in-service exposure to noise (which the Board does as well), the Veteran's current hearing loss was less likely as not related to his exposure to noise in service, reasoning that several post-service audiograms demonstrated normal hearing.  The December 2009 VA audiological opinion is of  significant probative value because it is factually accurate, as it appears the VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning.  There are no contrary opinions of record.

Based on the evidence of record, the preponderance of the competent evidence demonstrates no relationship between the Veteran's hearing loss and his military service, including no credible evidence of symptoms of hearing loss during active service or continuity of symptomatology of hearing loss following service separation; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for hearing loss, and outweighs the Veteran's more recent contentions regarding in-service chronic hearing loss symptoms and post-service hearing loss symptoms.  For these reasons, the claim must be denied.  

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for a Disability of the Spine

The Veteran contends that he has a disability of both the lumbar and cervical spine that was incurred during active service.  He testified vaguely at the April 2013 Board hearing that he injured his lower back while lifting during active service.  He also testified that he was involved in a car accident during active service in which he hurt his back and neck.  He stated he did not see a medic following the accident, but treated himself.  Further, he testified that he first sought treatment for his back/neck in 1993 or 1994.

After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that there was no event, injury, or disease manifesting a disability of the spine during active service, and that the preponderance of the evidence demonstrates that symptoms of a spine disability were not chronic in service.  The Veteran's service treatment records are entirely negative for complaints, reports, symptoms, findings, treatment, or diagnosis of a spine disability.  The November 1967 separation examination report is negative for any report or findings of a spine problem, and the Veteran checked "no" next to "arthritis" and "recurrent back pain."  

The Board next finds that the preponderance of the evidence demonstrates that symptoms of a spine disability have not been continuous since separation from active service in November 1967.  As noted above, the November 1967 separation examination report is negative for any report or finding of a disability of the spine.  Following separation from service in November 1967, the evidence of record does not show any complaints, diagnosis, or treatment for spine symptoms until August 2006, when the Veteran filed a claim for service connection for a back disability (he later added the neck claim in 2010).  The first documented treatment for a spine problem is February 2008, when the Veteran reported a history of chronic low back pain at a VA Medical Center visit, despite denying current back pain at the same examination.    

The absence of post-service complaints, findings, diagnosis, or treatment for 39 years after service separation until 2006 is one factor that tends to weigh against a finding of chronic symptoms of a spine disability after service separation.  See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible).    

Additional evidence demonstrating that symptoms of a spine disability have not been chronic since service separation include an August 2002 private treatment note that shows a normal examination of the neck and back, June 2008 and February 2009 private treatment notes indicating that the Veteran denied back pain, a June 2009 private treatment note showing a normal examination of the neck, and a September 2009 private treatment note indicating the Veteran reported neck pain since January of that year, placing its inception more than 40 years after service separation.  

The Board also finds that the preponderance of the evidence demonstrates that arthritis of the spine did not manifest to a compensable degree within one year of service separation.  The preponderance of the evidence demonstrates no arthritis symptoms during the one year period after service, and no diagnosis or findings of arthritis of any severity during the one year post-service presumptive period.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012) (degenerative and traumatic arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved, and can be assigned a 10 percent evaluation if limitation of motion is noncompensable).  Indeed, the evidence does not demonstrate a diagnosis of arthritis until September 2009, when x-ray studies showed degenerative changes in both the cervical and lumbar spine.  For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case.  38 C.F.R. §§ 3.307, 3.309 (2012).

With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had spine symptoms since separation from service in November 1967, the Board finds that, while the Veteran is competent to report the onset of spine symptoms, his recent reports of chronic spine symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable.  See Charles, 16 Vet. App. 370.  The Board finds that the statements of the Veteran as to chronic spine symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for findings, treatment, or diagnosis of a spine disability, the lack of any post-service documentation of treatment or diagnosis of a spine disability for over 40 years after service separation until 2008, normal examination of the neck and back in August 2002, the Veteran's failure to relate any of his spine problems to military service while seeking treatment in 2008 and 2009, and his statement in 2009 that his neck pain had begun earlier that year.  

In sum, based on the evidence of record, the preponderance of the competent evidence demonstrates no relationship between the Veteran's current spine disability and his military service, including no credible evidence of either an in-service disease or injury manifesting a spine disability, chronic symptoms of a spine disability during active service, or chronic symptoms of a spine disability following service separation, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion.  

Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a spine disability, and outweighs the Veteran's more recent contentions regarding in-service chronic spine problems and post-service spine problems.  For these reasons, the claim must be denied.  

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for Hypertension

The Veteran contends that his current hypertension is related to active service.  Specifically, he avers that he was diagnosed with hypertension during active service.  Alternatively, he contends that his hypertension was caused or aggravated by his service-connected diabetes mellitus.  

The Board notes that VA regulations specify that the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm.  38 C.F.R. § 4.104, Diagnostic Code 7101.  

Turning first to the question of whether the Veteran's hypertension is directly related to active service, the Board finds that the preponderance of the evidence is against a finding that his hypertension began during active service.  The service treatment records are negative for any findings or diagnosis of high blood pressure or hypertension.  

Further, the Board finds that the preponderance of the evidence demonstrates that hypertension did not manifest to a compensable degree within one year of service separation.  The evidence demonstrates no diagnosis or findings of hypertension to a degree of 10 percent or more (as required by 38 C.F.R. § 3.307(a)(6)(ii)) during the one year post-service presumptive period.  See 
38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  In that regard, the Board notes that, in January 1968, several months after service separation, the Veteran's blood pressure was recorded at 152/78 and 144/86 during an employment physical, and he was diagnosed with mild hypertension.  However, the requirements for a compensable disability rating under Diagnostic Code 7101 - a diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more in a person who requires continuous medication for control - were not met in January 1968 or within the year following service separation.  For these reasons, the Board finds that hypertension did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hypertension are not applicable in this case.  38 C.F.R. §§ 3.307, 3.309.

However, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's hypertension has been chronic since service separation in November 1967, such that a nexus between the current hypertension and active service has been established.  38 C.F.R. § 3.303(b).  

As discussed above, the Veteran was diagnosed with mild hypertension in January 1968, several months after service separation.  In December 1969, elevated blood pressure readings of 180/76 and 172/74 were again recorded.  An August 1975 employer physical examination form notes a diagnosis of hypertension and a blood pressure reading of 140/96.  VA treatment notes from 2008 forward document a diagnosis and medication for hypertension.  

In summary, based on the documentation of a diagnosis of hypertension several months after service separation and of continuous symptoms of hypertension thereafter, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for hypertension are met.  See 
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Withdrawal of Appeal as to Hip, Respiratory Disability, 
Ischemic Heart Disease, Increased Rating for Diabetes, and TDIU Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, at the January 2012 RO hearing and at the April 2013 Board hearing, the Veteran has withdrawn the appeal as to the issues of entitlement to service connection for a bilateral hip disability, respiratory disability, and ischemic heart disease, to a higher disability rating for his service-connected diabetes mellitus, and to a TDIU, and, hence, there remain no allegations  of errors of fact or law for appellate consideration with regard to those issues.  Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of service connection for a bilateral hip disability, respiratory disability, and ischemic heart disease, to a higher disability rating for service-connected diabetes mellitus, and to a TDIU, and they are dismissed.

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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The 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.

With regard to the hypertension claim, given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary with regard to that issue.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

With regard to the TBI, erectile dysfunction, hearing loss, and spine claims, in timely September 2006 and May 2009 letters, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain.  The letter also described how VA determines disability ratings and effective dates.  An August 2010 letter explained the criteria for establishing a claim for secondary service connection.  The Board finds that any untimeliness in providing the secondary service connection notice is nonprejudicial to the Veteran, as he had an opportunity to submit additional evidence prior to readjudication of the claims in the September 2010 and July 2011 Supplemental Statements of the Case.  

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, VA opinions with regard to the TBI, erectile dysfunction, and hearing loss claims, and the Veteran's statements, including his testimony at a videoconference hearing before the undersigned in April 2013.  

The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the April 2013 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing his claims, including regarding specific evidence that may help substantiate his claims.  Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error.

VA opinions were obtained in December 2009 and February 2010 with regard to the question of whether the Veteran had current disabilities manifesting in a TBI or hearing loss that were related to active service, and whether he had current erectile dysfunction that was caused or aggravated by a service-connected disability.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the December 2009 and February 2010 VA opinions obtained in this case are adequate as to the question of whether the Veteran has a TBI or hearing loss related to active service or erectile dysfunction related to a service-connected disability.  The opinions were predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as complete physical examinations and interviews of the Veteran.  The VA nexus opinions considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provide complete rationale for the opinions stated, 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 or opinion with respect to the TBI, erectile dysfunction, and hearing loss claims has been met.  
38 C.F.R. § 3.159(c)(4).

The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for a disability of the spine or addressing the question of whether his erectile dysfunction is directly related to active service; however, the Board finds that a VA examination is not necessary in order to decide these issues.  Two pivotal Court cases exist that address the need for a VA examination.  Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim.  In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with his active military service. 

In this case, the Veteran's service treatment records are negative for any complaints of or treatment for a disability of the spine or erectile dysfunction.  Thus, the preponderance of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to a spine disability or erectile dysfunction in service, and there is no duty to provide a VA medical examination.  See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination).  As explained in this decision, the Board also finds that the preponderance of the evidence demonstrates no chronic symptoms of a spine disability or erectile dysfunction in service and no unremitting symptoms of a spine disability or erectile dysfunction since service separation.  Because there is no persuasive evidence in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a spine disability or erectile dysfunction.  See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). 

The Board has considered the decision in Charles, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's spine disability and erectile dysfunction would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value.  In other words, any medical opinion which purported to provide a nexus between the Veteran's spine disability or erectile dysfunction and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value.  The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value.  See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). 

The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis.  Referral of this case for an examination or to obtain a medical opinion would be a useless act.  The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the spine disability or erectile dysfunction claims.  See 38 U.S.C.A. § 5103A(a)(2); 
38 C.F.R. § 3.159(d).

Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Service connection for a TBI is denied.  

Service connection for erectile dysfunction is denied.  

Service connection for bilateral hearing loss is denied.  

Service connection for a disability of the spine is denied.  

Service connection for hypertension is granted.  

The appeal as to the issue of entitlement to service connection for a bilateral hip disability is dismissed.

The appeal as to the issue of entitlement to service connection for a respiratory disability, to include asbestosis, is dismissed.

The appeal as to the issue of entitlement to service connection for ischemic heart disease is dismissed.

The appeal as to the issue of entitlement to an increased disability rating for service-connected diabetes mellitus is dismissed.

The appeal as to the issue of entitlement to a TDIU is dismissed.


REMAND

The Veteran contends that he has a current left hand disability that is related to an injury he sustained during active service.  Specifically, he avers that, while stationed in Vietnam, he was stringing concertina wire around the perimeter of the base when he cut his left hand and it became infected.  He stayed in the hospital for three or four days and was given antibiotics.  

Following service separation, the Veteran testified at the Board hearing that he had two surgeries to the left hand, and that, currently, he was unable to pick up objects with the left hand or make a fist.  

Service treatment records confirm that the Veteran sustained a left finger laceration in March 1967 that developed into lymphangitis of the left arm and lymphadenitis of the left axilla due to the laceration of the finger, and that he was kept for treatment at an aid station for several days.  The Veteran also described this incident in a March 1967 letter to a family member that is associated with the claims file.  Post-service treatment records show that the Veteran underwent two surgeries to the left hand after he developed numbness and clamminess in the left hand after using a hammer.  

Based on the foregoing, the Board finds that a VA opinion is necessary to determine whether there is a current left hand disability that is related to the in-service left hand injury as described by the Veteran and documented in his service treatment records.  

Accordingly, the issue of entitlement to service connection for a left hand disability is REMANDED for the following action:

1.  Afford the Veteran a VA examination to address the causation or etiology of any current left hand disability.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided.  The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished.   

a.  The examiner should first identify any and all current left hand disabilities, if any.  

b.  The examiner should offer the following opinion:  Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran has a left hand disability that was incurred during or caused by active service - particularly the left finger laceration and subsequent left arm and axilla infections documented in March 1967? 

Note:  The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

If the opinions and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so.  In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed left hand disability.

2.  When the development requested has been completed, the issue of entitlement to service connection for a left hand disability should again be reviewed by the RO on the basis of the additional evidence.  If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012).

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. 2012).



______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs