Citation Nr: 18147579 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 13-17 777A DATE: November 6, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for erectile dysfunction, claimed as loss of use of a creative organ, to include as secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to service connection for left foot peripheral neuropathy, to include as due to exposure to herbicide agents and/or as secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to service connection for right foot peripheral neuropathy, to include as due to exposure to herbicide agents and/or as secondary to service-connected type II diabetes mellitus, is remanded. FINDINGS OF FACT 1. Right ear hearing loss was noted on the Veteran’s January 1971 enlistment examination, and such did not increase in severity during active duty service. 2. Left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. 3. Resolving all doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset during his active duty service. CONCLUSIONS OF LAW 1. The criteria for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to February 1973, including service in the Republic of Vietnam from April 1972 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran submitted additional evidence in support of his appeal. 38 U.S.C. § 7105(e)(1). The undersigned also held the record open for 60 days for the receipt of additional evidence; however, none has been received to date. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Only such conditions recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). However, if a pre-existing disability is noted upon entry into service, then the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Similarly, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. If the degree of hearing loss noted on an entrance examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness under § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss that is directly related to his military service. Specifically, at the March 2018 Board hearing, he reported that, while he was overseas, he was exposed to flying and working around helicopters with no hearing protection. In this regard, the Board finds his statements regarding his in-service noise exposure to be competent and credible as such are consistent with the circumstances of his service. Further, the Board finds that the competent evidence of record confirms that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. In this regard, while the VA examinations conducted during the appeal period indicate that the Veteran does not have such diagnosis, an April 2013 private treatment record noted that the Veteran had speech discrimination scores of 92 percent bilaterally using the Maryland CNC test. Thus, the Board finds that he has a current disability of bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. However, the Board finds that service connection for bilateral hearing loss is not warranted as the probative evidence of record reveals that the Veteran’s pre-existing right ear hearing loss was not aggravated by his service and his left ear hearing loss was not incurred during service. In this regard, the Veteran’s service treatment records (STRs) reveal that defective hearing loss was noted on his January 1971 enlistment examination and, at such time, the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hz were 25, 5, 5, and 60, respectively, in the right ear and 30, 15, 20, and 30, respectively, in the left ear. Consequently, while the Veteran had documented right ear hearing loss on entry to service, the presumption of soundness attaches in regard to his left ear hearing. McKinney, supra. During his separation examination in January 1973, the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hz were 0, 0, 0, and 0, respectively, in the right ear and were 0, 0, 0, and 0, respectively, in the left ear. In February 2013, the Veteran was afforded an audiological VA examination. At such time, the examiner opined that his hearing loss was not at least as likely as not caused by or a result of an event in military service and, to the extent that such pre-existed service, was not aggravated beyond its normal progression during his military service. In support thereof, the examiner noted that the Veteran’s January 1971 in-service examination showed hearing within normal limits to moderately severe hearing in the right ear and hearing within normal limits to mild hearing loss in the left ear, but that the Veteran’s January 1973 in-service examination showed hearing within normal limits bilaterally. The Veteran was afforded another VA examination in October 2017, at which time the examiner opined that his pre-existing right ear hearing loss was not aggravated beyond its normal progression during service as entered the military with hearing loss, but exited with normal hearing. He also opined that the Veteran’s left ear hearing loss was not at least as likely as not caused by or a result of an event during military service as he exited service with normal hearing. The Board notes that, in April 2013 and November 2017, Dr. J.E. opined that the Veteran’s bilateral hearing loss resulted from acoustic trauma sustained during military service. However, as the Veteran’s right ear hearing loss was noted at entrance into service, service connection may be granted only if it is shown that such increased in severity during service and, if so, such was not clearly and unmistakably due to the natural progression of such disorder. Dr. J.E. did not provide an opinion on such matter. Furthermore, he did not provide a rationale for his opinion that the Veteran’s bilateral hearing loss was related to his in-service noise exposure or address the fact that his hearing was normal upon his separation examination. Therefore, without considering all of the facts or providing a rationale for his opinion, Dr. J.E.’s opinion is afforded no probative weight. Conversely, the Board places great weight on the February 2013 and October 2017 VA opinions as such considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran’s lay statements asserting that his bilateral hearing loss is related to his active duty service. However, the Board finds that the question regarding the potential relationship between the Veteran’s bilateral hearing loss, and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe his in-service experiences and current symptomatology, the Board accords his statements regarding the causation and/or aggravation of his bilateral hearing loss little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation and/or aggravation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, the question of causation and/or aggravation of his bilateral hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as the Veteran does not have the appropriate medical training and expertise to offer an opinion as to the causation and/or aggravation of his bilateral hearing loss, the lay assertions in this regard have no probative value. Furthermore, there is no indication that the Veteran’s left ear hearing loss manifested to a compensable degree within a year of separation. In this regard, his left ear hearing acuity was measured to be normal upon his separation examination. Furthermore, there are no documented complaints of hearing loss for many decades after service, and left ear hearing loss was first diagnosed in April 2013 and still does not meet the requirements for a compensable rating. Although the Veteran is considered competent to report observable symptomatology such as hearing loss, he is not considered competent to identify when his hearing loss manifested to a compensable level as such is determined by the administration and interpretation of specialized audiological testing. Woehlaert, supra. Consequently, presumptive service connection for left ear hearing loss is not warranted. Therefore, the Board finds that right ear hearing loss was noted on the Veteran’s January 1971 enlistment examination, and such did not increase in severity during active duty service, and his left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. Consequently, service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus had its onset during his military service as a result of his in-service noise exposure. He further alleges that he has experienced ringing his ears since service. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the appeal. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, as previously noted, the Board finds that his statements regarding his in-service noise exposure to be competent and credible. Consequently, the remaining inquiry is whether the Veteran’s tinnitus is related to his military service. In February 2013, the Veteran was afforded a VA examination, at which time the examiner noted that he reported his tinnitus began after his time in service and, thus, opined that such was less likely than not caused by or a result of military noise exposure. During the Veteran’s October 2017 VA examination, the examiner noted that the Veteran reported that his tinnitus began “15-20 years ago.” Thus, he opined that such disorder was less likely than not caused by or a result of military noise exposure. However, in April 2013 and November 2017, Dr. J.E. opined that the Veteran’s tinnitus resulted from acoustic trauma during his military service, but he did not provide a rationale for his opinion. Nonetheless, while the aforementioned VA examiners noted that the Veteran reported his tinnitus began after service, at the March 2018 Board hearing, he testified that he experienced ringing in the ears during service and such had been present ever since. Additionally, in his July 2012 claim, the Veteran reported that his tinnitus began during service in 1971. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his active duty service. Consequently, service connection for tinnitus is warranted. REASONS FOR REMAND 3. Entitlement to service connection for erectile dysfunction, claimed as loss of use of a creative organ, to include as secondary to service-connected type II diabetes mellitus. 4. Entitlement to service connection for left foot peripheral neuropathy, to include as due to exposure to herbicide agents and/or as secondary to service-connected type II diabetes mellitus. 5. Entitlement to service connection for right foot peripheral neuropathy, to include as due to exposure to herbicide agents and/or as secondary to service-connected type II diabetes mellitus. The Veteran is seeking service connection for erectile dysfunction, to include as secondary to his service-connected diabetes, and service connection for bilateral foot peripheral neuropathy, which he contends is related to his acknowledged exposure to herbicide agents coincident with his service in the Republic of Vietnam and/or as secondary to his service-connected diabetes. In this regard, in February 2013, September 2014, and October 2017, VA examiners found that the Veteran did not have a diagnosis referable to the male reproductive system and/or peripheral neuropathy; however, the Board notes that the Veteran was not given an in-person examination and such findings were based on a review of the available records. Furthermore, at the March 2018 Board hearing, the Veteran stated that he has experienced erectile dysfunction for the past three years. He also testified that he experienced his bilateral feet were cold all the time and tingling. He further submitted an article from Mayo Clinic on diabetic neuropathy. Moreover, a December 2016 VA treatment record noted an assessment of pruritus, possibly secondary to developing neuropathy. Thus, the Board finds that a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of his claimed erectile dysfunction and bilateral foot peripheral neuropathy. Additionally, on remand, the Veteran should be provided with proper notice regarding the evidence and information necessary to substantiate the secondary aspect of his claims. The matters are REMANDED for the following action: 1. The Veteran should be provided with proper notice regarding the evidence and information necessary to substantiate claims of entitlement to service connection for erectile dysfunction and bilateral foot peripheral neuropathy as secondary to service-connected diabetes. 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed erectile dysfunction. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) The examiner should determine if the Veteran has a current diagnosis of erectile dysfunction. (B) If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to the Veteran’s military service. (C) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is caused by OR aggravated by the Veteran’s service-connected diabetes. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 3. The Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his claimed bilateral foot peripheral neuropathy. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) The examiner should determine if the Veteran has a current diagnosis of right and/or left foot peripheral neuropathy. (B) If so, he examiner should offer an opinion as to whether the Veteran manifested early onset peripheral neuropathy within one year of his last exposure to herbicides in October 1972? If so, what were the manifestations? (C) If the examiner offers a negative opinion as to (B), the examiner should offer an opinion as to whether any current peripheral neuropathy disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service, to include his presumed exposure to herbicide agents coincident with his service in Vietnam. The examiner’s rationale cannot be based solely on the fact that VA has not included peripheral neuropathy other than early onset peripheral neuropathy on the list of presumptive conditions. In other words, the Board needs an opinion as to the likelihood that the Veteran’s peripheral neuropathy of the right and/or left foot, without regard to the conditions VA recognizes as being presumptively related to herbicide exposure, is nevertheless at least as likely as not related to his exposure to herbicide agents during service. The examiner is also advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any peripheral neuropathy disorder. (D) The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any current peripheral neuropathy disorder is caused by OR aggravated by his service-connected diabetes. For any aggravation found, please state, to the best of your ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel