Citation Nr: 18144351 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-26 504 DATE: October 24, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to a compensable evaluation for bilateral hearing loss is denied. Entitlement to a compensable evaluation for residuals of right radical orchiectomy is denied. Entitlement to a compensable evaluation for scar associated with residuals of right radical orchiectomy is denied. Entitlement to a compensable evaluation for right perforated tympanic membrane is denied. Entitlement to Special Monthly Compensation (SMC) for loss of a creative organ is granted. REMANDED Entitlement to service connection for left inguinal hernia is remanded. FINDINGS OF FACT 1. The evidence is in approximate balance as to whether the Veteran has a diagnosis of tinnitus that is related to service. 2. The Veteran was diagnosed with erectile dysfunction during the appeal period and an opinion was provided linking erectile dysfunction to orchiectomy that occurred during service. 3. Bilateral hearing loss disability is manifested by Level I hearing loss in the right ear and Level I hearing loss in the left ear. 4. The Veteran’s scar from right radical orchiectomy measures 0.01 in² (0.1 cm²). 5. The Veteran underwent a right radical orchiectomy due to cancer during his military service; his left testicle has not been removed. 6. The Veteran underwent surgery for a perforated tympanic membrane which resulted in hearing loss and tinnitus. 7. The evidence of record demonstrates that the Veteran’s right testicle was removed during his military service due to well-differentiated liposarcoma. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C. §§ 1110, 5107, 7104 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Resolving doubt in favor of the Veteran, erectile dysfunction was incurred in service. 38 U.S.C. §§ 1110, 5107, 7104 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for a compensable evaluation for bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2017). 4. The criteria for a compensable evaluation for removal of the right testicle are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7523 (2017). 5. The criteria for a compensable evaluation for a scar associated with excision and right radical orchiectomy are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7805 (2017). 6. The criteria for a compensable evaluation for right perforated tympanic membrane have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §4.87, Diagnostic Code 6211 (2017). 7. The criteria for entitlement to SMC for loss of a creative organ have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1978 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran has not raised the issue of TDIU due to service-connected disabilities. Therefore, the issue of entitlement to TDIU is not before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The Board notes that the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In a claim for secondary service connection, the regulation provides that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between the service-connected disability and the condition said to be proximately due to the service-connected disability. Buckley v. West, 12 Vet. App. 76, 84 (1998). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting its determinations, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. A current diagnosis of recurrent tinnitus is shown in the record. See October 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The Veteran served in the United States Air Force. He reported that he was exposed to acoustic trauma from a F4 running after burners were deployed which exceeded the capacity of his hearing protection during service. See February 2013 letter from Dr. P.Y. He was also exposed to loud noise on the flight line during service. Id. Tinnitus has been variously defined. It is “a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane”). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). “Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin.” 59 Fed. Reg. 17,297 (April 12, 1994). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Having reviewed the record pertaining to this claim, the Board has determined that service connection for tinnitus is warranted. The February 2013 physician opined that the Veteran’s tinnitus in his right and left ear were more likely than not directly and causally related to the Veteran’s military service. The physician described the various noise exposures he experienced during service which are described above. The February 2013 physician also mentioned that the Veteran underwent surgery for a ruptured tympanic membrane on the anatomical right during service. See February 2013 letter from Dr. P.Y. The October 2013 VA examiner noted that the Veteran surgery for his right perforated tympanic membrane was unsuccessful resulting in hearing loss and tinnitus. The Board acknowledges the negative opinion provided by the October 2013 examiner. See October 2013 Hearing Loss and Tinnitus DBQ. The Veteran reported that he noticed his tinnitus in 2006. The examiner opined that it was less likely than not that his tinnitus was due to military service as it began at least 7 years after discharge from service. The Veteran has a current diagnosis of tinnitus, but there is evidence for and against the finding that his tinnitus is related to his military service. Therefore, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether tinnitus is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. 2. Entitlement to service connection for erectile dysfunction The Veteran claims that his erectile dysfunction is related to his military service. A February 2013 letter from a physician found that the Veteran had a current diagnosis of erectile dysfunction with only poor response to Viagra type medications. See February 2013 letter from Dr. P.Y. The physician diagnosed the Veteran with post-surgical residual erectile dysfunction. Id. The physician explained that his erectile dysfunction was a sequela of his surgical right orchidectomy which occurred during service. Id. During the October 2013 Male Reproductive System Conditions DBQ, the Veteran reported that his erectile dysfunction had resolved. Therefore, there appears to be a diagnosis of erectile dysfunction in February 2013 just prior to the Veteran filing his claim in March 2013. During the October 2013 examination, the Veteran reported that erectile dysfunction had resolved. There are no treatment records since the Veteran’s discharge showing at when the Veteran’s erectile dysfunction had resolved. In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007) (a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Board finds that the evidence shows that he had a diagnosis of erectile dysfunction during the appeal period even though the evidence shows that it was resolved by the time he was afforded a VA examination in October 2013. There is also an opinion linking the Veteran’s erectile dysfunction to his orchidectomy that occurred during service. Resolving all doubt in the Veteran’s favor, the Board finds that all three elements have been met. Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). Therefore, having resolved doubt in favor of the Veteran, service connection for erectile dysfunction is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. 3. Entitlement to a compensable evaluation for bilateral hearing loss Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85 (a) and (d) (2017). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz. As such, § 4.86 does not apply. Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to Table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran’s disability rating. On the authorized audiological evaluation in October 2013, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 45 60 65 51 LEFT 25 25 50 60 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The Board observes that application of the regulation to the findings of the October 2013 examination results in a numeric designation of I for the right ear and I for the left. A noncompensable evaluation is warranted when those values are applied to Table VII. 38 C.F.R. § 4.85, 4.85, Diagnostic Code 6100 (2017). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In the October 2013 examination report, the examiner noted that the Veteran’s service-connected bilateral hearing loss did not impact ordinary conditions of daily life. The Board does not doubt the sincerity of the Veteran’s assertions regarding the severity of his hearing loss, or its functional impact. However, the Board must apply the regulation as it is currently written, which requires objective audiometric testing at certain levels to qualify for higher compensation. The more probative evidence consists of that prepared by the skilled audiologist, and such evidence demonstrates that the currently assigned evaluation for the Veteran’s hearing loss disability is appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Entitlement to service connection for residuals of right radical orchiectomy, to include scar associated with excision Diagnostic Code 7523, testis, complete atrophy, provides a noncompensable rating for complete atrophy of one testis, and a 20 percent rating for complete atrophy of both testes (and both ratings include footnotes to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350). 38 C.F.R. § 4.115b (2017). Diagnostic Code 7524, testis, removal, provides a noncompensable rating for removal of one testis, and a 30 percent rating for removal of both testes (and both ratings include footnotes to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350). 38 C.F.R. § 4.115b (2017). In cases of the removal of one testis as the result of a service-incurred injury or disease, other than an undescended or congenitally undeveloped testis, the absence or nonfunctioning of the other testis unrelated to service, an evaluation of 30 percent will be assigned for the service-connected testicular loss. Id. The Veteran is in receipt of service connection for excision and right radical orchiectomy for well-differentiated liposarcoma. He is also service-connected for residual scar associated with excision and right radical orchiectomy. Having reviewed the record, the Board regrettably concludes that a compensable evaluation is not for application. In this regard, the Board observes that the language of Diagnostic Code 7524 is clear and unambiguous: a compensable, 30 percent evaluation can be assigned only when there is removal of both testes. Only the right testicle was removed, and thus a noncompensable evaluation is warranted. Moreover, the testicles are not considered paired organs under the provisions of 38 C.F.R. § 3.383. The Veteran is also service-connected for a scar associated with the right radical orchiectomy. The evidence does now show that the scar is painful or unstable. See Male Reproductive System Conditions DBQ dated October 2013. Therefore, a compensable evaluation is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The Board has considered the Veteran’s arguments and testimony regarding this claim, but finds that the most probative evidence establishes that there is no basis upon which to assign a compensable evaluation to this disability. The preponderance of the evidence is against a compensable evaluation, and there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Despite this, the Board finds that SMC is warranted. SMC is discussed below. 5. Entitlement to a compensable evaluation for right perforated tympanic membrane Service connection is in effect for right perforated tympanic membrane status post-surgery. See Rating Decision dated in November 2013. The Agency of Original Jurisdiction assigned a noncompensable evaluation. Under Diagnostic Code 6211, a noncompensable evaluation is highest evaluation allowed under the law for this condition. See 38 C.F.R. § 4.87, Diagnostic Code 6211. The October 2013 examiner noted that the Veteran had right perforated tympanic membrane status post-surgery. The surgery was unsuccessful resulting in hearing loss and tinnitus. The Veteran is service-connected for tinnitus (per this decision) and bilateral hearing loss. Therefore, besides diagnostic codes for bilateral hearing loss, tinnitus and perforated tympanic membranes, the Board does not find that any other diagnostic code would be applicable to this disability. Therefore, the Board does not find that a compensable evaluation is warranted. 6. Entitlement to Special Monthly Compensation (SMC) Entitlement to SMC is an inferable issue anytime Veteran is asking for increased benefits. See Akles v. Derwinski, 1 Vet. App 118 (1991). SMC is payable if the Veteran, as the result of a service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114 (k), 38 C.F.R. § 3.350 (a). Here, the Veteran underwent removal of his right testicle due to well-differentiated liposarcoma during his military service. Thus, it follows that entitlement to SMC based on loss of a creative organ is granted. See Id. REASONS FOR REMAND Entitlement to service connection for left inguinal hernia is remanded. The Veteran claims that he has a current left inguinal hernia disability that is related to his military service. The October 2013 examiner opined that the Veteran had surgery to his right hernia during service and not his left. The examiner did not state whether the Veteran’s left hernia disability was otherwise related to his military service and did not provide an opinion as to whether it was aggravated by his right radical orchiectomy. For these reasons, a VA examination is needed to provide a current diagnosis for his left hernia and an opinion as to whether it is related to his military service or to right radical orchiectomy. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left inguinal hernia disability that was diagnosed at any time during the appeal period. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, to include right radical orchiectomy. 2. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel