Citation Nr: 1333926 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-23 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to an increased rating in excess of 20 percent for service-connected residual scar of the left side of the neck. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty from February 1968 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2007 and September 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, the Veteran testified before the undersigned. A transcript of the hearing has been associated with the claims file. It is noted that the issue regarding service connection for erectile dysfunction has been restyled. At this juncture, consideration of special compensation based on loss of use of a creative organ is premature as the Veteran is not service-connected for erectile dysfunction. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Erectile Dysfunction and Hypertension In July 2008, a VA compensation and pension examiner concluded that the Veteran's erectile dysfunction was not caused or aggravated by service-connected diabetes mellitus. In a September 2009 statement and in hearing testimony, the Veteran essentially indicated that the conclusion of the July 2008 VA examiner was incorrect as it was based on an inaccurate factual premise. The Veteran explained that his erectile dysfunction had not started 19 years earlier, as reported by the VA examiner. Instead, the Veteran stated that he had experienced erectile dysfunction in conjunction with his diabetes mellitus, beginning around 2003. The July 2008 VA examiner also opined that hypertension is not a complication of diabetes because the Veteran has normal renal function. The VA examiner also opined that hypertension is not worsened or increased by diabetes. The VA examiner's opinion regarding hypertension is not sufficiently detailed to ascertain whether hypertension is caused or aggravated by diabetes mellitus. 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). Inadequate examinations and opinions include those that provide insufficient supporting rationale, contain only data and conclusions, or are based on an inaccurate factual premise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that a remand is warranted to obtain a supplemental medical opinion from the July 2008 VA examiner regarding the issues of service connection for erectile dysfunction and service connection for hypertension. Hearing Loss and Tinnitus The Veteran asserts that bilateral hearing loss and tinnitus are related to acoustic trauma during his service aboard the USS Coral Sea as an aircraft ordinance specialist. A VBA Fast Letter 10-35 shows that aircraft ordinance has a high probability of noise exposure. Therefore, based upon the Veteran's service occupation, the Veteran's exposure to hazardous noise is conceded. The Veteran was afforded a VA audiology examination in July 2008. The VA examiner diagnosed sensorineural hearing loss. The VA examiner opined that the Veteran's hearing loss is not related to military noise exposure. The service treatment records show that there were shifts in audiometric thresholds between entrance into service in December 1967 and the separation examination in February 1972. The Veteran had threshold shifts at frequencies of 500, 1000 and 2000 Hertz in the right ear and at frequencies of 500, 1000, 2000 and 4000 Hertz in the left ear. The separation audiogram noted a threshold of 25 decibels at 4000 Hertz in the right ear. The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. at 155, 159-160 (1993). The July 2008 VA examiner did not account for the inservice threshold shifts; thus, another opinion is required to determine whether current bilateral hearing loss is related to service. With regard to the claim for service connection for tinnitus, the VA examiner noted that there was no documentation in the claims file of tinnitus in either ear. However, the claims file does include both complaints and diagnoses of tinnitus. A July 2008 otolaryngology treatment record reflects tinnitus. A private record dated in January 2013 reflects a diagnosis of subjective tinnitus. Given the foregoing, the VA audiology examiner should review the claims file and provide an addendum opinion, taking into account Hensley and the threshold shifts during service. The VA examiner should also consider the Veteran's complaints of tinnitus and provide an etiology opinion as to whether current tinnitus is related to acoustic trauma in service. Scar of the Neck In April 2009, the RO issued a Statement of the Case (SOC) which regarded the Veteran's increased rating claim. Thereafter, in November 2009 and many years prior to certification of this case to the Board, the RO received records from the Social Security Administration (SSA). The SSA records include evidence regarding the cervical spine, which may impact the Veteran's claim for an increased rating for service-connected residual scar of the left side of the neck. This evidence and any other relevant evidence associated with the file since April 2009 must be considered by the RO, and a Supplemental Statement of the Case issued to the Veteran. In addition, the Veteran should undergo an additional VA compensation and examination to assess the current severity of his scar of the left neck. It is noted that the Veteran complains of various symptoms which he attributes to the service-connected scar, including spasm, difficulty swallowing, and pain. A new examination will assist in assessing the extent of his residuals. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the claims folder to the examiner who conducted the VA examination of July 2008 and request a supplemental opinion. The VA examiner is requested to review the claims file. The VA examiner is then requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss is etiologically related to his active service, taking into consideration the threshold shifts between the December 1967 and February 1972 audiograms and the threshold of 25 decibels at a frequency of 4000 Hertz for the right ear at separation. The VA examiner is further requested to take into consideration the January 2013 private physician's opinion that hearing loss is related to jet engine noise during service and the October 2007 audiology consult that reflects that the Veteran's sensorineural hearing loss was consistent with military noise exposure. The VA examiner should provide a detailed rationale for the opinion. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. In the event that the March 2008 VA examiner is not available, or is no longer employed by VA, obtain a medical opinion from another examiner that addresses the inquiries set forth above regarding the disability claimed. 2. The audiologist should provide a supplemental opinion regarding the etiology of tinnitus. The audiologist should consider the Veteran's complaints of tinnitus, which were noted in VA medical records in 2008 and in private medical records in January 2013. The VA examiner should provide an opinion as to whether current tinnitus is at least as likely as not (50 percent or greater likelihood) related to active service to include noise exposure therein. The VA examiner should provide a detailed rationale for the opinion. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. In the event that the March 2008 VA examiner is not available, or is no longer employed by VA, obtain a medical opinion from another examiner that addresses the inquiries set forth above regarding the disability claimed. 3. The RO/ AMC should return the claims file to the examiner who conducted the VA examination of July 2008 pertaining to erectile dysfunction and hypertension. The VA examiner should review the claims file. The VA examiner should provide an opinion regarding the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's erectile dysfunction is proximately caused by or aggravated by (permanently worsened in severity) his service-connected diabetes mellitus. The examiner should consider the Veteran's statements and testimony that erectile dysfunction had its onset in 2003. The VA examiner should provide a detailed rationale for the opinion. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's hypertension is proximately caused by or aggravated by (permanently worsened in severity) his service-connected diabetes mellitus. The VA examiner should provide a detailed rationale for the opinion. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. The RO/AMC should schedule the Veteran for an appropriate examination to assess the severity of his residual scar of the left side of the neck. The VA examiner should review the claims file. All necessary testing should be completed. The examiner should identify all service-connected residuals of the scar of the left side of the neck to include the extent of muscle damage, scarring, and limitation of motion and function. The examiner should address whether it is at least as likely as not that he has difficulty swallowing and spasm as a result of the scar. 5. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiners have responded to all questions posed. If not, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2012). After the requested actions are completed, the supplemental opinions should be reviewed to ensure complete compliance with the directives of this remand. 6. Thereafter, the claims should be readjudicated. If the claims remain denied, provide a supplemental statement of the case to the Veteran and his representative, and allow them an opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).