Citation Nr: 18144221 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-37 212 DATE: October 24, 2018 ORDER The claim of entitlement to service connection for a back disability is reopened. Entitlement to service connection for residuals of a back injury is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. An unappealed January 1969 rating decision denied entitlement to service connection for a back disability. 2. New and material evidence received since the January 1969 rating decision relates to unestablished facts necessary to substantiate the Veteran’s previously denied claims of entitlement to service connection. 3. The preponderance of the evidence is against finding that the Veteran’s back disability began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury, event, or disease. 5. The Veteran did not serve in the Republic of Vietnam. 6. The Veteran was not exposed to herbicide agents at a Royal Thai Air Force Base. 7. The preponderance of the evidence is against finding that the Veteran’s prostate cancer began during active service, or is otherwise related to an in-service injury, event, or disease. 8. The Veteran does not have bilateral lower extremity peripheral neuropathy. 9. The preponderance of the evidence is against a finding that the Veteran’s erectile dysfunction began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The January 1969 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. Additional evidence received since the January 1969 rating decision is new and material, and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§3.303, 3.307, 3.309, 3.385 (2017). 5. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1111, 1113; 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309 (e) (2017). 6. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1111, 1113; 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309 (e) (2017). 7. The criteria for service connection for bilateral lower extremity peripheral nephropathy have not been met. 38 U.S.C. §§ 1110, 1111, 1113; 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 8. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. 1. Reopening Previously Denied Claim To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the AOJ denied the Veteran’s claims for service connection for a back disability in a January 1969 rating decision. The Veteran did not submit a notice of disagreement and no new and material evidence was received by VA within one year of the issuance of the rating decision. As such, the rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the July 1969 rating decisions, new and material evidence has been received in the form private treatment records and a VA examination. Therefore, to this extent only, the benefit sought on appeal is granted and the claim for service connection for a back disability is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board acknowledges that the Veteran has not been provided with VA examinations for his claimed diabetes mellitus, type II, bilateral peripheral neuropathy, or erectile dysfunction. However, VA need not conduct examinations with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159 (c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 or 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 VA to make a decision on the claim. The standards of McLendon are not met in this case. As discussed in greater detail below, while the Veteran has diagnoses of diabetes mellitus, type II, and erectile dysfunction, the evidence does not support a finding that the conditions occurred in service or during a presumptive period, or that the conditions are associated with his service or any other service-connected disability. Regarding his claim for bilateral lower extremity peripheral neuropathy, the evidence of record does not indicate a current, competent diagnosis. Thus, remand for VA examinations for the above claims is not necessary. 2. Back Disability The Veteran asserts that he is entitled to service connection for a back disability, which he contends began after an in-service back injury and has given him trouble since that time. See, e.g., November 2013 notice of disagreement. Initially, the Board notes that in his March 1966 report of medical history given at induction, the Veteran indicated he had strained his back November 1965. However, the Veteran’s spine was evaluated as clinically normal during his March 1966 entrance exam, and the examining physician specifically noted that there was no clinical evidence of spinal of paravertebral muscle problems. Thus, the Veteran was in sound condition on entrance into service. 38 C.F.R. § 3.304 (b). Although this presumption is rebuttable, VA must do so by showing clearly and unmistakably both that a disability existed prior to service, and that such disability was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); see also Wagner v. Principi, 370 F.3d 1089, 1096-97 (2004). Here, VA cannot meet that burden considering a contemporaneous finding that the Veteran’s spine was clinically normal at induction. See Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). Therefore, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbosacral strain, and evidence shows that the Veteran complained of lower back pain while in service, the preponderance of the evidence weighs against finding that the Veteran’s currently diagnosed back disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). June 1967 service treatment records show that the Veteran complained of acute back pain after lifting heavy weights. The Veteran also complained of back pain on several other occasions. See, e.g., Service treatment records dated in June 1967, March 1968, and June 1968. However, upon separation in June 1968, the Veteran’s spine was evaluated as clinically normal during a medical examination. After he left active duty service, the first indication of complaints, treatment, or diagnosis of a back disability are contained in a June 2014 private treatment record, when the Veteran reported thoracic back pain lasting one or two weeks and was given a diagnosis of thoracic pain. Imaging done at the time showed mild degenerative changes, but the private treatment records do not include a diagnosis related to the degenerative changes. The Veteran was afforded a VA examination in October 2017. The Veteran reported he injured his back while unloading equipment in the spring of 1967 when a board he was standing on broke and he fell through. The VA examiner reported a diagnosis of lumbosacral strain, which was dated to June 2014, and noted that imaging studies had been done, but did not indicate arthritis. The examiner opined that the Veteran's back condition was less likely than not related to his claimed in-service injury, explaining that the Veteran's in-service condition was acute, and that there was no evidence of chronicity of care. While the Veteran is competent to report having experienced symptoms of back pain since service, he has not been shown to be competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a back disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2017 VA examiner’s negative nexus opinion. 3. Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss, asserting that he had in-service noise exposure while serving as a heavy vehicle driver. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and the evidence shows that the Veteran had noise exposure while in service, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran has been given a diagnosis of bilateral hearing loss. See October 2017 VA examination report. The Veteran’s DD Form 214 shows that he was a heavy vehicle driver while in service, consistent with his asserted exposure. Therefore, in-service noise exposure is conceded. The Veteran underwent a VA examination in August 2012; however, the examiner did not report the Veteran's test results because they were considered invalid and unreliable, explaining that they were inconsistent and did not represent the Veteran's maximal effort. The examination was therefore inadequate. The Veteran was afforded a second VA examination in October 2017, during which he complained of decreased hearing for the prior three to four years that had worsened over the prior year. The examiner gave a diagnosis of sensorineural hearing loss in both ears, but opined that the hearing loss was less likely than not related to service. The examiner noted that the Veteran’s right ear hearing thresholds at entrance and separation were within normal limits, but that the Veteran’s left ear discharge examination indicated a 30 dB decrease in threshold at 500 Hz, as well as a 15 dB decrease in thresholds at 1 kHz and 4kHz, which was slightly worse than normal test/retest variability. Nevertheless, the examiner explained that noise induced hearing loss will not progress once it is stopped, citing the American College of Occupational Medicine Noise and Hearing Conservation Committee, and it was therefore less likely than not that the Veteran’s current bilateral hearing loss was related to military noise exposure. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his bilateral hearing loss is related to in-service noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of audiological testing and interpretation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2017 VA examiner’s opinion. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 4. Prostate Cancer The Veteran contends that he is entitled to service connection for prostate cancer, specifically arguing that he was exposed to herbicide agents while traveling to Korat Royal Thai Air Force Base in Thailand, or alternatively while in the Republic of Vietnam, and is therefore entitled to presumptive service connection. See April 2013 Veteran statement; July 2016 VA Form 9; November 2016 Veteran statement. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of diabetes mellitus, type II, the record does not demonstrate that the Veteran had any periods of service in the Republic of Vietnam, nor that he was on or near the perimeter Korat Royal Thai Air Force Base, and presumptive service connection is not warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309 (e). Further, the Board finds that the preponderance of the evidence is against finding that his prostate cancer began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). If a veteran was exposed to an herbicide agent during service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or if it is established that a veteran was directly exposed to perimeter of one of certain enumerated Royal Thai Air Force Bases (RTAFBs), including Korat, in Thailand, certain enumerated diseases shall be presumptively service-connected, even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309 (e); see also 38 C.F.R. § 3.307(a)(6)(ii). In this case, the Veteran's service record does not demonstrate the Veteran served in the Republic of Vietnam. The Agency of Original Jurisdiction (AOJ) attempted to verify the Veteran's asserted service in the Republic of Vietnam, but in an August 2013 memorandum, the Joint Services Records Research Center (JSRRC) determined that the Veteran's claimed service in the Republic of Vietnam could not be corroborated, and no other exposure to herbicides was found. The Veteran has also asserted that he was stationed at Phanom Sarakham, Thailand, with the 809th Engineer Battalion, and while there traveled to Korat RATFB, where he contends he crossed the perimeter and worked along the runway. See, e.g., November 2016 Veteran statement; February 2017 DRO informal conference report. While the Veteran's service record confirms that he was stationed in Thailand from January 1967 to December 1967, the record does not support his assertion that he travelled to Korat RTAFB. In a February 2018 response, Defense Personnel Records Information Retrieval System (DPRIS) reported that it had coordinated research with National Archives and Records Administration (NARA), but had been unable to locate a 1967 unit history for the 809th Engineer Battalion. However, DPRIS did review Operational Reports – Lessons Learned (OR-LLs) from the 809th and 9th Logistical Command for February 1967 to October 1967, which indicated the unit was located at Phanom Sarakham, and documented construction activity at Camp Charn Sinthrope, Phanom Sarakham, Camp Vayama. But the OR-LLs did not document personnel assigned to the battalion making trips to Korat, nor was there any documentation of unit personnel being exposed to herbicide agents through use, storage, spraying, or transportation. Notwithstanding the foregoing presumptive provisions, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the Veteran’s remaining service records do not note any herbicide agent exposure. Thus, the record does not establish that the Veteran was exposed to any herbicide agents while in service. The Board additionally finds the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s prostate cancer and an in-service injury, event or disease to establish service connection on a direct basis. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(d). The Veteran was treated for a prostate gland infection while in service. See Service treatment records dated in March 1968 and June 1968. The Veteran was afforded a VA examination in October 2017, during which he reported he was diagnosed with prostatitis in service, and prostate cancer in 2007, and his prostate had been removed. The examiner opined that the Veteran's prostate cancer was less likely than not related to his in-service prostate infection. The examiner explained that the Veteran's in-service condition was acute and that there was no evidence of chronicity of care for the condition. While the Veteran believes his prostate cancer is related to his active duty service, he has not been shown to be competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2017 VA examiner’s opinion. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for prostate cancer, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 5. Diabetes Mellitus As with prostate cancer, the Veteran contends that he is entitled to service connection for prostate cancer, specifically arguing that he was exposed to herbicide agents while traveling to Korat Royal Thai Air Force Base in Thailand, or alternatively while in the Republic of Vietnam, and is therefore entitled to presumptive service connection. See April 2013 Veteran statement; July 2016 VA Form 9; November 2016 Veteran statement. However, as discussed in detail above, the evidence of record does not establish that the Veteran was exposed to an herbicide agent while in service, and presumptive service connection is not warranted. See 38 C.F.R. § 3.309 (e); see also 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). But the Board finds that the preponderance of the evidence is against finding that his diabetes mellitus, type II, began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are otherwise negative for any complaints, treatment, or diagnoses of diabetes mellitus, type II. The Veteran was not diagnosed with diabetes mellitus, type II, until many years after service, and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of diabetes mellitus, type II. Thus, the Board concludes that the weight of the evidence is against a finding of continuity of symptomatology since service. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type II, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 6. Peripheral Neuropathy The Veteran contends that he is entitled to service connection for bilateral lower extremity nephropathy, specifically that nephropathy is related to his diabetes mellitus, type II. See January 2012 claim; April 2013 Veteran statement. As discussed above, the Veteran is not entitled to service connection for diabetes mellitus, type II. Therefore, the question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that the Veteran does not have a current diagnosis of peripheral nephropathy of either the left or right lower extremity and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The medical evidence of record is silent for any complaints, treatment, or diagnosis of lower extremity peripheral neuropathy. And while the Veteran may believe he has current diagnosis of bilateral lower extremity nephropathy, he has not been shown to be competent to provide a diagnosis for this condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds that service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 7. Erectile Dysfunction The Veteran contends that he is entitled to service connection for erectile dysfunction, specifically that his erectile dysfunction is related to his diabetes mellitus, type II. See January 2012 claim; April 2013 Veteran statement. As discussed above, the Veteran is not entitled to service connection for diabetes mellitus, type II. Therefore, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of erectile dysfunction, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are silent for complaints of erectile dysfunction. The first instance of any complaint of erectile dysfunction is in the Veteran’s January 2012 claim for service connection. The Veteran is competent to report that he experiences erectile dysfunction, and as the erectile dysfunction may be diagnosed by its unique and readily identifiable features, it is capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thus, the Board finds that the Veteran is competent to diagnosis erectile dysfunction. However, other than the Veteran’s assertion of entitlement to service connection, the other evidence of record does not indicate a relationship between the Veteran’s military service and his erectile dysfunction. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), providing an opinion on the etiology of his erectile dysfunction falls outside the realm of common knowledge of a lay person and the Veteran has not been shown to be competent to provide a nexus opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for erectile dysfunction, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel