Citation Nr: 18147572 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-25 104A DATE: November 5, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for erectile dysfunction, as secondary to service-connected type II diabetes mellitus, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is related to noise exposure in service. 2. The Veteran’s tinnitus is related to noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to August 1967. These matters come before the Board of Veterans’ Appeals (Board) from a June 2011 rating decision. The record on appeal includes a Rapid Appeals Modernization Program (RAMP) opt-in election form received on January 8, 2018. RAMP is a program that allows veterans to opt in to the new claims and appeals process before the Veterans Appeals Improvement and Modernization Act of 2017 takes effect. However, RAMP does not apply to the appeals such as this one that have already been certified to and activated at the Board (see a September 2018 letter sent to the Veteran). The Board points out, however, that the Veteran has also perfected an appeal as to the issues of entitlement to higher initial ratings for peripheral neuropathy of the left and right lower extremities. The appeal as to these issues has been accepted into RAMP and the Board will not address these issues at this time (see a July 2018 letter sent to the Veteran). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for bilateral hearing loss and tinnitus Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has current bilateral hearing loss and tinnitus caused by exposure to loud noise in service. The Board concludes, for the following reasons, that the Veteran has current diagnoses of bilateral hearing loss and tinnitus that are related to acoustic trauma in service. 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). A January 2011 VA audiological examination report shows that the Veteran has current diagnoses of bilateral hearing loss as defined by VA and tinnitus. See 38 C.F.R. § 3.385. He has reported that he was exposed to loud noise in service associated with military jet aircraft without the use of hearing protection while serving as a signalman on the USS Forrestal during active flight operations. He is competent to report in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, his DD Form 214 reflects that his military occupational specialty was a signalman. There is nothing to explicitly contradict his reports and his reports are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran’s reports of in-service noise exposure are credible. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). Regarding whether the Veteran’s current hearing loss and tinnitus are related to his in-service noise exposure, Denis W. Grillo, D.O., F.O.C.O.O. reported in a July 2009 examination report that the Veteran had a symmetrical high frequency sensorineural hearing loss and tinnitus. Dr. Grillo opined that “this problem is related to years of noise exposure in the military.” There was no further explanation or rationale provided for this opinion. The audiologist who conducted the January 2011 VA audiological examination was unable to resolve the question of whether the Veteran’s hearing loss and tinnitus were related to in-service noise exposure without resort to mere speculation. He explained that a September 2005 Institute of Medicine report on noise exposure in the military concluded that if documentation of the existence of hearing loss or tinnitus at the time of separation from service was missing, it is nearly impossible to determine whether hearing loss or tinnitus later in life is the result of noise exposure during prior military service. As no valid hearing tests were performed during the Veteran’s service, he reported gradual hearing loss and the onset of tinnitus decades after separation, and there were other potential etiologies (including aging, hypertension, diabetes, recreational noise exposure, and the usage of potentially ototoxic medications), it would be speculative to allocate a portion of his current hearing loss and tinnitus to each of these etiologies. Overall, the etiology of the Veteran’s hearing loss and tinnitus could not be determined to a reasonable degree of certainty based on the evidence of record. The January 2011 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to etiology of the Veteran’s hearing loss and tinnitus could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Although Dr. Grillo did not provide any specific rationale for his July 2009 opinion, he nonetheless concluded based upon treatment of the Veteran and a review of his reported history that his bilateral hearing loss and tinnitus were associated with his in-service noise exposure. The opinion is thus entitled to some probative weight and there is no contrary opinion in the evidence of record. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Hence, in light of Dr. Grillo’s opinion and resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss and tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.385. REASONS FOR REMAND Entitlement to service connection for erectile dysfunction, as secondary to service-connected type II diabetes mellitus, is remanded. The Veteran contends that he has current erectile dysfunction associated with his service-connected diabetes mellitus. A VA diabetes examination was conducted in January 2011 and the Veteran was diagnosed as having erectile dysfunction. The examination report notes that the Veteran’s medical records reflected that his diabetes had its onset in 2002, at which time he was placed on medication. The Veteran has reported, however, that he was first diagnosed as having diabetes in 1992 by a private treatment provider (the records of which are not currently in the claims file) and that he was first prescribed insulin in 2002. He has also reported that his erectile dysfunction had its onset in approximately 1995 (see an October 2010 statement from the Veteran). The examiner who conducted the January 2011 examination opined that the Veteran’s erectile dysfunction was not caused by, a result of, or worsened/increased by his diabetes. Regarding causation, the examiner reasoned that the erectile dysfunction had its onset “many years prior to diabetes.” With respect to aggravation, the examiner only noted that there was “no objective data to support aggravation,” but the examiner did not provide any further explanation or rationale. The January 2011 opinion is inadequate because it appears that it is based upon an inaccurate history. Although the examiner explained that the first clinical evidence of diabetes was in 2002 and that the Veteran’s erectile dysfunction had its onset prior to the diabetes, the examiner did not acknowledge or comment upon the Veteran’s reports of having been initially diagnosed with diabetes in 1992 (which predates his reported 1995 onset of erectile dysfunction). Moreover, the examiner did not provide any explanation or rationale for why the Veteran’s erectile dysfunction was not aggravated by his diabetes. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for erectile dysfunction because no VA examiner has adequately opined whether the Veteran’s erectile dysfunction is caused or aggravated by his service-connected diabetes mellitus. Hence, an appropriate medical opinion should be obtained upon remand. Also, in his February 2012 notice of disagreement, the Veteran identified relevant outstanding private treatment records. Specifically, he reported that he was first diagnosed as having diabetes in the 1990s by Dr. Serfer. A remand is required to allow VA to obtain authorization and request these records. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The VA treatment records in the claims file are from the North Florida/South Georgia Veterans Health System and are dated from March 2010 to August 2018. The January 2011 VA diabetes examination report appears to reference VA treatment records dated prior to March 2010. Any VA treatment records are within VA’s constructive posseession, and are considered potentially relevant to the remaining issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for erectile dysfunction and diabetes, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for erectile dysfunction and diabetes from Dr. Serfer and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the North Florida/South Georgia Veterans Health System for the periods from August 1967 through March 2010 and since August 2018; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is at least as likely as not (1) proximately due to service-connected diabetes mellitus; or (2) aggravated by service-connected diabetes mellitus. The clinician must provide reasons for each opinion given. In this regard, the clinician must acknowledge and consider the Veteran’s reports that he was initially diagnosed as having diabetes in approximately 1992. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel