Citation Nr: 1340101 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-44 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable rating for post-operative residuals of a bilateral epididymectomy, status post epididymitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board has reviewed the Virtual VA and VBMS paperless claims processing systems and has included evidence pertinent to the appeal in the decision therein. The issue of entitlement to service connection for erectile dysfunction has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A bilateral hearing loss was not manifest during active service, and a sensorineural hearing loss was not manifest to a compensable degree within one year of separation from active duty and is not otherwise attributable to active service. 2. Tinnitus was not manifest during active service and is not otherwise attributable to active service. 3. Post-operative residuals of a bilateral epididymectomy, status post epididymitis, is not manifested by complete atrophy of both testicles. CONCLUSIONS OF LAW 1. A bilateral hearing loss was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for a compensable evaluation for post-operative residuals of a bilateral epididymectomy, status post epididymitis, have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.20, 4.115b, Diagnostic Codes 7599-7523 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in February 2008 VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and what part VA would attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims. Service Connection The Veteran appeals the denial of entitlement to service connection for bilateral hearing loss and tinnitus. He asserts that his hearing problems are a result of his working in a flight line warehouse where both C-5 and C-41 aircraft were maintained. According to the Veteran, his hearing loss and tinnitus has been a gradual problem. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as a sensorineural hearing loss, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Based on the evidence of record, the Board finds that the evidence preponderates against entitlement to service connection for a bilateral hearing loss disability and tinnitus. Service treatment records reveal no complaints, findings, or diagnoses of a hearing loss disability and/or tinnitus. Clinical evaluation of the Veteran's ears during the April 1974 and April 1978 periodic examinations was determined to be normal. The September 1978 separation examination revealed normal clinical findings for the ears. At that time, the Veteran denied ear trouble and hearing loss. Also, sensorineural hearing loss was not clinically shown to be compensably disabling within a year of separation from active duty. The record reveals that in December 1978 the appellant filed a claim for service connection for bilateral epididymitis. No reference or complaints to hearing loss and/or tinnitus was made on the application. Rather, the evidence shows hearing problems and tinnitus were first clinically documented decades following the appellant's discharge from service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The claims folder simply does not contain competent and credible evidence relating the Veteran's hearing loss and/or tinnitus to active military service or events therein. Neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any competent evidence or opinion linking either disorder to service. The Board has reviewed all service treatment records, all VA medical records of file, as well as private treatment records. These records do not include any opinion linking the Veteran's disabilities to service. Rather, a September 2008 VA examiner opined that hearing loss and tinnitus were not at least as likely as not due to or aggravated by events encountered during time served in service. The VA examiner commented that review of audiograms done in the 1970s and even as late as 1978 revealed no significant hearing loss at the time of discharge and that the Veteran only noticed the tinnitus within the prior five to six years. The Veteran is competent to report difficulty hearing and ringing in the ears, and the circumstances surrounding such. Layno v. Brown, 6 Vet. App. 465, 469 (1994). To the extent that the Veteran argues that his disabilities are related to service, the Board finds that the medical opinion is persuasive and warrants being assigned greater probative weight. The opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. In addition, the examiner addressed the Veteran's contentions and based his opinions on a review of the claims folder as well as a complete physical examination. Furthermore, the Veteran has offered inconsistent statements regarding the onset of his tinnitus. In his October 2007 claim for compensation, he reported an onset of hearing loss in 2004 and tinnitus in 1981. During the September 2008 VA examination, however, he claimed an onset of tinnitus about five to six years prior. His inconsistent statements go against his credibility and make him an unreliable historian. In sum, the most probative evidence of record is devoid of showing that the Veteran's hearing loss and tinnitus are related to service. As there is not an approximate balance of positive and negative evidence regarding the merits of the claims that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran appeals the denial of a compensable rating for post-operative bilateral epididymectomy, status post bilateral epididymitis. His disability is rated by analogy under Diagnostic Code 7523 with a hyphenated Diagnostic Code. Hyphenated Diagnostic Code are used when a rating under one code requires use of an additional Diagnostic Code to identify the basis for the rating. 38 C.F.R. § 4.27. Diagnostic Code 7599 represents an unlisted disability requiring rating by analogy to one of the disorders rated under the code. Diagnostic Code 7523 contemplates impairment due to complete testis atrophy and provides for the assignment of a noncompensable evaluation for complete atrophy of a single testicle. Assignment of a 20 percent evaluation is warranted for complete atrophy of both testicles. A review of the record discloses that the Veteran does not have complete atrophy of both testicles, which is required to warrant the assignment of a 20 percent evaluation under Diagnostic Code 7523. In this regard, in the September 2008 VA examination the Veteran reported occasional shooting pains in the scrotum and groin area approximately four to five times a month. He had vague tenderness and discomfort of the right testicle especially with walking. He denied hematuria, dysuria or history of other kidney or bladder diseases. Examination revealed the testicles were nontender and no inguinal hernias were present. There were no penile lesions. Chronic epididymitis was diagnosed. The evidence summarized above is against a finding of complete atrophy of both testicles. A compensable disability rating is also not warranted under the remaining diagnostic codes pertaining to the genitourinary system. There is no evidence of kidney dysfunction, urinary dysfunction, or bladder dysfunction due to residuals of epididymitis. While the Veteran has been diagnosed with erectile dysfunction, no deformity of the penis has been shown so as to warrant a rating under Diagnostic Code 7522. The Veteran has presented credible testimony regarding the nature and extent of his scrotal and groin pain. The Board, however, assigns greater probative value to the VA examination than the Veteran's reports of symptomatology. The examination was conducted by a medical professional with the expertise to comment and opine on the matter at issue. The examiner reviewed the records, which included the Veteran's contentions, and conducted a complete physical examination. The medical findings of record are also well reasoned and supported by the historical record, and they simply do not show evidence of complete bilateral testicular atrophy. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. To the extent that the Veteran has complained of symptoms such as pain, his symptoms are specifically contemplated by the general rating formula. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a compensable rating for post-operative residuals of a bilateral epididymectomy, status post epididymitis, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs