Citation Nr: 1514518 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 88-46 891A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to an initial compensable evaluation for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to April 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal in part from a November 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which denied service connection for bilateral hearing loss. The Board remanded this issue for additional development in March 2004. This case is also before the Board on appeal in part from an April 2004 rating decision that denied service connection for a neck disability, claimed as due to service-connected bilateral knee disability. In November 2006, the Board denied service connection for a cervical spine disability, to include as secondary to service-connected disability. The Board remanded the claim for service connection for bilateral hearing loss. The Veteran appealed the Board's denial of service connection for a cervical spine disability to the United States Court of Appeals for Veterans Claims (Court). In an Order in June 2008, the Court granted a Joint Motion for Partial Remand and vacated and remanded that part of the Board decision that denied service connection for a cervical spine disability. In December 2009, the Board remanded the claim of service connection for bilateral hearing loss for further development and adjudication. In July 2010 and March 2012, the Board remanded the claim of service connection for a cervical spine disability. The Board remanded the bilateral hearing loss and cervical spine claims in August and December 2012 for further development. These issues are now before the Board for final appellate consideration. This case is also before the Board on appeal in part from a July 2010 rating decision that granted service connection for erectile dysfunction, secondary to service-connected prostate cancer, status-post robotic assisted laparoscopic radical prostatectomy. The evaluation was noncompensable. The issue of an initial compensable evaluation for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent medical evidence, and competent and credible lay evidence, does not demonstrate that the Veteran's current cervical spine disability is related to active duty, or that it was proximately caused or aggravated by service-connected disability. 2. The competent medical evidence, and competent and credible lay evidence, does not demonstrate that the Veteran's current bilateral hearing loss is related to active duty. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, the result of, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2014). 2. Bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice for the cervical spine claim was provided in a March 2004 letter. Notice for the hearing loss claim was provided in an April 2004 letter. The claims were readjudicated in September 2012 and April 2013 supplemental statements of the case. The Board is aware that Dingess notice as to the rating criteria or effective date provisions was not provided for either service connection claim. In this case, such errors were harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, and the Veteran's own statements in support of his claim. The record also contains a magazine article, internet articles and medical text excerpts submitted by the Veteran. The record contains the transcript of March 2006 hearing before a Veterans Law Judge (VLJ) no longer employed at the Board. The Veteran additionally testified as to each service connection issue on appeal during a December 2014 hearing before the undersigned VLJ. At that time, the undersigned VLJ informed the Veteran that the prior VLJ had retired and therefore the Veteran could testify before her as to the two service connection claims. In December 2014 correspondence, the Veteran stated that he knew that the December 2014 hearing was for the two service connection claims on appeal, and he had come to the hearing prepared to address them. Thus, the Veteran has been able to testify as to the service connection issues before the undersigned VLJ who is deciding them on appeal. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. After having concluding that all earlier VA medical opinions were inadequate, in July 2013 the Board obtained an Audiology Medical Advisory Opinion. The Board also obtained an August 2013 Advisory Medical Opinion and a December 2013 addendum addressing the Veteran's cervical spine claim. 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 Advisory Medical opinions and the addendum are more than adequate, in that they reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record and provide rationales for the opinions offered. Thus, there is adequate medical evidence of record to make a determination in this claim, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Cervical Spine Disability The Veteran contends that he has a cervical spine disability as a result of having jumped approximately 80 feet out of a helicopter in Vietnam. The Veteran states that at the time he was wearing a pack and the company radio, which together weighed about 150 pounds. The Veteran contends that he has had cervical spine problems ever since. The Board's August 2012 remand found that the Veteran's testimony as to the event was credible. The Veteran also contends that his cervical spine disability is secondary to service-connected orthopedic disabilities. In this regard, he is service-connected for, among other things, status-post right total knee replacement with arthrofibrosis, Reiter's syndrome with arthritic joint condition, lumbar spine strain, left knee injury, arthritis of the right shoulder and arthritis of the left shoulder. In addition to the general laws regarding service connection set forth above, certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen, which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a cervical spine disability, to include as secondary to service-connected disability. The Veteran's service medical records are negative for a cervical spine disability by complaint, finding, or history. After service, an X-ray of the cervical spine in December 2001 revealed degenerative changes present. In July 2011, X-rays by VA of the cervical spine showed minimal degenerative joint disease at C5-6. In October 2011, a CT scan by VA showed bilateral neuroforamina narrowing at C3-4, mild narrowing of the neuroforamina at C5-6, and a likely bulging disk at C6-7. In November 2011, a MRI by VA showed multilevel disk disease with central canal and foraminal stenosis from C3 through C7. As noted, the Board found earlier VA medical opinions inadequate. As a result, the Board will not address those medical opinions. An April 2012 VA examination report provides the remark that the diagnosis of cervical radiculopathy was in relation to the use of bilateral Canadian crutches. However, the examiner provides no explanation or rationale for this opinion. In fact, the report itself does not diagnose cervical radiculopathy. In the August 2013 Advisory Medical Opinion, the examiner provided the opinion that it was less likely than not that the Veteran's current cervical spine problems were related to the Veteran's injury in service. The Veteran had moderate degenerative disk and joint disease of the spine that was almost universally present in people of this age, regardless of the prior injury to the cervical spine or the rest of the skeletal structures of the body and extremities. It could not be concluded that the findings in the Veteran's neck were related to a helicopter jump injury to his lower back and knees over 40 years ago. The examiner stated that it was less likely than not that the Veteran's current cervical spine issues were caused or aggravated by Reiter's syndrome. It was less likely than not that the Veteran's current service connection problems were caused or aggravated by the Veteran's past and current problems with his knees, lower extremities, upper extremities or the resort to assistive devices like crutches. In the December 2013 addendum, the VA examiner described Reiter's syndrome, now referred to as reactive arthritis, and stated that he found nothing in the medical records to support the Veteran's initial diagnosis of acute Reiter's syndrome or reactive inflammatory arthritis with superimposed spondyloarthropathy of the cervical spine. The medical record demonstrated conventional degenerative changes of the cervical spine. The examiner noted that he could not causally relate these abnormalities to similar degenerative changes reported in the Veteran's arms, legs or knees. Moreover, in the examiner's experience, large numbers of people who resort to canes and crutches for lower back and leg problems do not develop disabling problems with their neck. The examiner stated that this was why he must repeat his opinion that it was less likely than not that the Veteran's reported degenerative cervical spine problems could be attributed to his other degenerative skeletal problems. The Board finds that the August 2013 Advisory Medical Opinion and December 2013 addendum constitute probative evidence against the Veteran's claim. They also outweigh the April 2012 VA medical opinion linking the Veteran's cervical spine disability to his use of crutches. They are based on a review of the Veteran's active duty and post-service medical record. The examiner explained his opinions with references to the Veteran's service treatment records, post-service medical records and statements, as well as medical principles and his own medical expertise, experience and knowledge. This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185 (1999); Prejean v. West, 13 Vet. App. 444 (2000). The article excerpts submitted by the Veteran are too general in nature to provide, alone, the necessary evidence to show that the Veteran's cervical spine disability is related to his active duty, or was proximately caused or aggravated by a service-connected disability. See Sacks v. West, 11 Vet. App. 314 (1998). The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West, 11 Vet. App. 509 (1998). In the current case, the article excerpts do not provide statements for the facts of the Veteran's specific case. Therefore, the Board concludes that they do not show to any degree of specificity that the Veteran's current cervical spine disability is related to his active duty, or was proximately caused or aggravated by a service-connected disability. The Board notes that the Veteran is competent to testify as to his observable symptoms during and after active duty. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that any such assertions are credible. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, supra. Additionally, 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. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, the Veteran's contentions do not constitute competent evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran's current cervical spine disability is related to his active duty, or was proximately caused or aggravated by a service-connected disability) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428 (2011); Jandreau, 492 F.3d at 1377 n.4. As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a cervical spine disability, to include as secondary to service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss due to noise exposure in Vietnam. This included gun and cannon fire, as well as the detonation of a grenade fuse near his head. In addition to the general laws regarding service connection set forth above, certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385 , which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Board points out that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability. Hensley, 5 Vet. App. at 157. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. The Veteran's service treatment records include a separation whispered voice test, with a score of 15/15. The Board points out that VA Training Letter 10-02, issued in March 2010 regarding the adjudication of claims for hearing loss, provides that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02) (March 18, 2010). In that letter, the Director of the VA C&P Service stated that "whispered voice tests... cannot be considered as reliable evidence that hearing loss did or did not occur." Id. The record shows that the Veteran has bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. As noted, the Board found earlier VA medical opinions inadequate. As a result, the Board will not address those medical opinions. In the July 2013 Advisory Medical Opinion, the examiner conceded military noise exposure. The examiner noted that the Veteran explained that it was a grenade fuse, not a whole grenade, that detonated within close range of him. The examiner noted that he was a retired Army veteran with exposure to Vietnam-era weapons, and suggested that a hearing threshold shift suffered by the Veteran due to the fuse element would be temporary. In addition, the Veteran stated that the fuse detonated on his right side. The examiner pointed out that the Veteran's right side hearing loss was very mild and would not be a disability by VA standards. The greater hearing loss was in the left ear, which was shielded from the detonation by the Veteran's head. Therefore, if hearing loss was the result of the detonation, then the greater share would have been observed on the Veteran's right ear, not left ear. The examiner noted the Veteran's testimony with respect to post-service noise exposure and concluded that the Veteran had confirmed that he was exposed to hazardous noise of tractors and other machinery associated with working on a ranch. The examiner also reviewed some of the Veteran's statements about post-service exposure to firearms and concluded that he did shoot firearms after separation. The examiner noted that the record contains VA speech discrimination scores from 2001, 2005, 2007, 2010 and 2013. The VA examinations were credible. The examiner noted that speech discrimination scores were excellent on all the examinations, at 94 percent or better bilaterally. The examiner states that the examination results suggested an increase in the severity of hearing loss over time which was not inordinate. The Board acknowledges that the examiner did not specifically state that it was not at least as likely as not that the Veteran's current hearing loss was related to his active duty noise exposure or was proximately caused or aggravated by service-connected disability. Nevertheless, it is clear from the repot as a whole and his stated medical opinion that the examiner believes that the Veteran's current hearing loss is normal for his age and post-service noise exposure. The examiner's opinion is clearly that it is not at least as likely as not that the Veteran's current hearing loss is related to noise exposure during active duty or was proximately caused or aggravated by service-connected disability. The examiner also noted that without an accurate hearing test at the Veteran's separation from active duty, and with hearing loss not confirmed until 2001, it would be mere speculation to assume that the Veteran's hearing loss occurred during military service as opposed to the ensuing years between 1970 and 2001. The Board observes that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2011). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. The Court in Jones held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. In the present case, the findings in the record, as identified by the examiner, plainly demonstrate that it cannot be concluded that the Veteran's current hearing loss is related to active duty without mere speculation. The Board finds that the July 2013 Advisory Medical Opinion constitutes probative evidence against the Veteran's claim. It is based on a review of the Veteran's active duty and post-service medical record. The examiner explained his opinion with references to the Veteran's own statements, service treatment records, post-service medical records, medical principles and the examiner's own medical expertise, experience and knowledge of Vietnam-era weapons. This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. See Bloom, supra; Prejean, supra. The Board finds it significant that there is no medical evidence to the contrary of the July 2013 VA opinion. In fact, the medical record is negative for any evidence linking the Veteran's current bilateral hearing loss to his active duty. The book excerpts submitted by the Veteran are too general in nature to provide, alone, the necessary evidence to show that the Veteran's active duty noise exposure caused his current hearing loss. See Sacks, supra. In the current case, the medical text excerpt does not provide statements for the facts of the Veteran's specific case. Wallin, supra Therefore, the Board concludes that it does not show to any degree of specificity that the Veteran's current hearing loss is related to his active duty noise exposure. The Board notes that the Veteran is competent to testify as to his observable symptoms during and after active duty. Layno, supra. The Board finds that any such assertions are credible. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, supra. Additionally, 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. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, supra. However, the Veteran's contentions do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's current bilateral hearing loss is related to his active duty) falls outside the realm of common knowledge of a lay person. See Kahana, supra; Jandreau, 492 F.3d at 1377 n.4. As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for bilateral hearing loss. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disability, is denied. Entitlement to service connection for bilateral hearing loss is denied. REMAND A May 2011 VA treatment record provides an assessment of bilateral testicular pain. It noted that there were no objective findings to explain the Veteran's symptoms, and it could be that the testicular pain was referred from other sites. During the December 2014 hearing, the Veteran testified that he continued to have testicular pain related to his erectile dysfunction. He stated that a VA physician and his own VA treating physician related his testicular pain to his past prostate surgery. In this regard, the Veteran was granted service connection for erectile dysfunction as secondary to his service-connected prostate cancer, status-post robotic assisted laparoscopic radical prostatectomy. The Board observes that statutes and regulations require that VA assist a claimant by providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Thus, as the Veteran's testimony suggests that his service-connected erectile dysfunction causes testicular pain, the proper adjudication of his increased evaluation claim requires an additional VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected erectile dysfunction, secondary to service-connected prostate cancer, status-post robotic assisted laparoscopic radical prostatectomy. The examiner is requested to delineate all symptomatology associated with, and the current severity of the erectile dysfunction and specifically address whether this disability results in testicular pain. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. Copies of all pertinent records from the Veteran's claims file and eFolders must be made available to the examiner. A complete rationale for all opinions expressed must be provided. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs