Citation Nr: 1337986 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-20 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for multiple myeloma. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for epididymitis. 4. Entitlement to service connection for a prostate disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a low back disability. 7. Entitlement to service connection for a bilateral foot disability. 8. Entitlement to service connection for a bilateral hearing loss disability. 9. Entitlement to service connection for tinnitus. 10. Entitlement to service connection for syphilis. 11. Entitlement to service connection for hypertension. 12. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1960 to July 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of December 2008 and November 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection. The issues of hepatitis C, epididymitis, a prostate disability, a bilateral foot disability, hypertension, and erectile dysfunction are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Multiple myeloma is related to service. 2. A left knee disability, to include arthritis, has not been shown in active service or within one year after discharge, and there is no competent evidence of a link between the current disability and the Veteran's active service. 3. A low back disability has not been shown during the pendency of the appeal. 4. A bilateral hearing loss disability has not been shown during the pendency of the appeal. 5. Tinnitus has not been shown during the pendency of the appeal. 6. Syphilis has not been shown during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for multiple myeloma have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 4. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 5. The criteria for service connection tinnitus have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 6. The criteria for service connection syphilis have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An October 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. The claim was subsequently readjudicated, most recently in an April 2010 supplemental statement of the case. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. VA must provide a VA medical examination or obtain a medical opinion if the evidence of record is insufficient to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While there is evidence of a current left knee disability, the evidence does not indicate that the claimed disability may be associated with an event, injury, or disease in service. On the claims of service connection for a low back disability, a bilateral hearing loss disability, tinnitus, and syphilis, the record is absent inservice incurrence, current diagnosis or treatment, or history of symptoms since service. A VA medical examination or medical opinion is not necessary to decide the claims. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for multiple myeloma, a left knee disability, a low back disability, bilateral hearing loss, tinnitus, and syphilis. The Veteran contends that he was exposed to hazardous chemicals while serving aboard the USS Vega (AF-59) and the USS Rainier (AE-5) and that those chemicals caused all of the above claimed disabilities except syphilis. As the Veteran did not serve in the Republic of Vietnam during the requisite time period, presumptive service connection on the basis of herbicide exposure does not apply. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009). Service connection may be granted for disability resulting from an injury incurred during active military service. 38 C.F.R. § 3.303(a). For a veteran who served 90 days or more of continuous, active service, and a chronic disease, such as arthritis or sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic". Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Multiple Myeloma The Veteran contends that exposure to hazardous chemicals in service caused his current multiple myeloma. Dr. Kennedy, one of the Veteran's treating VA oncologists, expressed the opinion that his multiple myeloma is the result of exposure to hazardous chemicals in service. Dr. Kennedy's opinion is the only competent medical evidence of record that pertains to causation. While there is no evidence other than the Veteran's statement directly supporting his exposure to hazardous chemicals, the evidence reflects that he served aboard the type of ship where such chemicals were, as a matter of course, present. As the record is absent any evidence against the claim of service connection for multiple myeloma, and giving the Veteran the benefit of doubt as the law requires, service connection for multiple myeloma is warranted. A left knee disability The Veteran and his wife contend that exposure to hazardous chemicals caused his left knee disability, to include arthritis. Service treatment records show that the Veteran was treated for bilateral knee abrasions incurred while washing the deck of a ship on his hands and knees. Post service treatment records show that the Veteran underwent knee surgery after a motor vehicle accident in 1979 and that he has reported knee pain since 1998. X-rays taken in 1998 show evidence of post traumatic arthritis of the left knee. The Veteran and his wife, as lay persons, are competent to report knee pain and symptoms they can personally observe. 38 C.F.R. § 3.159(a)(2). They are also competent to diagnose a simple medical condition, capable of lay observation. Arthritis is a complex medical condition, which is generally confirmed only through x-ray evidence. See 38 C.F.R. § 4.71a, DC 5003, 5010; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As neither the Veteran nor his wife have shown that they are qualified through education, training, or experience to offer medical diagnoses on complex medical conditions, they are not competent to diagnose arthritis and their opinions in this regard are of no probative value. Nor has a factual foundation has been established to show that the Veteran or his wife are otherwise qualified to attribute the knee disability to exposure to hazardous chemicals in service. Their opinions in this regard are of no probative value. As arthritis was not noted or diagnosed in service or within one year of separation, service connection under 38 C.F.R. §§ 3.303(b) or 3.307 does not apply. Symptoms of a left knee disability did not begin until 34 years after service and the record is absent competent medical evidence with respect to a nexus to service. The preponderance of the evidence is against the claim for service connection for a left knee disability; there is no doubt to be resolved; and service connection is not warranted. A low back disability The Veteran and his wife contend that exposure to hazardous chemicals caused his current low back pain. Service treatment records show no complaints, treatment, diagnoses, or symptoms of low back pain in service. Postservice treatment records show that the Veteran denied back pain about as often as he complained of back pain. In July 2000, the Veteran was treated for a sebaceous cyst of the back. An incision was made and the cyst was drained. The record is absent lay or medical evidence of a low back disability, other than pain, during the pendency of the appeal. Pain alone is not a disability for which service connection may be granted, and a current low back disability has not been shown during the pendency of the appeal. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The preponderance of the evidence is against the claim for service connection for a low back disability; there is no doubt to be resolved; and service connection is not warranted. A bilateral hearing loss disability and tinnitus The Veteran and his wife contend that exposure to hazardous chemicals caused bilateral hearing loss and tinnitus. Service connection requires proof of a current disability. Hearing loss will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service and postservice treatment records show no complaints, treatment, diagnoses, or symptoms of hearing loss or tinnitus in service. Neither lay or medical evidence show any treatment, diagnoses, or symptoms of hearing loss or tinnitus in, or since, service. In the absence of proof of a current disability, there can be no valid claim. Boyer, 210 F.3d at 1353. The preponderance of the evidence is against claims for service connection for a bilateral hearing loss disability and tinnitus; there is no doubt to be resolved; and service connection is not warranted. Syphilis The Veteran contends that his current multiple myeloma caused syphilis. Service and postservice treatment records show no complaints, treatment, diagnoses, or symptoms of syphilis in or since service. As syphilis is a complex bacterial infection, it is not a simple medical condition capable of lay observation. Competent medical evidence is needed to diagnose syphilis. See Jandreau, 492 F.3d at 1376-77. The Veteran is not competent to self-diagnose syphilis because he has not shown that he is qualified through education, training, or experience to offer medical diagnoses. The Veteran has received urological treatment in, and since, service. However, the record is absent any evidence of treatment or diagnosis of syphilis. In the absence of proof of a current disability, there can be no valid claim. Boyer, 210 F.3d at 1353. The preponderance of the evidence is against the claim for service connection for syphilis; there is no doubt to be resolved; and service connection is not warranted. ORDER 1. Service connection for multiple myeloma is granted. 2. Service connection for a left knee disability is denied. 3. Service connection for a low back disability is denied. 4. Service connection for a bilateral hearing loss disability is denied. 5. Service connection tinnitus is denied. 6. Service connection syphilis is denied. REMAND As the evidence suggests that hepatitis C, epididymitis, a prostate disability, hypertension, and erectile dysfunction may be caused by the Veteran's now service-connected multiple myeloma, a VA examination is needed. The Veteran contends that his pre-existing bilateral foot disability was aggravated during his military service. An August 22, 1960, service treatment record shows that pes planus was noted on entrance to service. VA treatment records show that the Veteran complained of bilateral foot pain and corns in 2003 and 2008. Hallux valgus was diagnosed in 2003. As the evidence of record indicates that symptoms of a bilateral foot disability may have been aggravated by service, a VA examination is needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examinations by an appropriate medical professional to determine whether the Veteran's diagnosed hepatitis C, epididymitis, prostate disability, hypertension, and erectile dysfunction are caused or aggravated by his service-connected multiple myeloma. The entire claim file must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that hepatitis C, epididymitis, a prostate disability, hypertension, and erectile dysfunction are caused or aggravated by his service-connected multiple myeloma. The term "aggravated" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA examination by an appropriate medical professional to assess the Veteran's current foot disabilities. The entire claim file must be reviewed by the examiner. In light of the preexisting pes planus noted on entrance to service and medical history noted throughout the VA medical treatment records the examiner is to: (a) Diagnose all current foot disabilities and provide an opinion as to whether each existed at the time of entrance or was incurred during service. (b) As to any disabilities which existed at the time of entrance, provide an opinion as to whether they were aggravated during service beyond the natural progression of the preexisting disability. The term "aggravated" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2013). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs