Citation Nr: 18151474
Decision Date: 11/20/18	Archive Date: 11/19/18

DOCKET NO. 14-42 910
DATE:	November 20, 2018
ORDER
Entitlement to service connection for a testicular disorder with sterilization is denied.
REMANDED
Entitlement to service connection for blisters on the head and hands is remanded. 
Entitlement to service connection for a skin disorder is remanded. 
Entitlement to service connection for vertigo is remanded. 
Entitlement to service connection for a left thumb tendon/punji stick wound residual is remanded.
Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to left thumb arthrodesis, left carpal tunnel release, hardware removal, interphalangeal fusion with internal fixation, and reexploration and fusion (in flexion) of the left thumb interphalangeal joint, is remanded
Entitlement to a compensable rating for bilateral hearing loss is remanded. 
FINDING OF FACT
The preponderance of evidence is against a finding that the Veteran’s testicle disorder with sterilization was manifested during service, within one year of his service separation, or is otherwise related an in-service event, injury or disease.
CONCLUSION OF LAW
The criteria for establishing entitlement to service connection for a testicle disorder with sterilization have not been met.  38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had honorable active duty service with the United States Army from March 1971 to April 1972.
Duties to Notify and Assist 
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
The Board acknowledges that the Veteran’s service treatment records are incomplete.  Due to the incomplete records, VA’s duty to explain its findings and conclusion is heightened.  O’Hare v. Derwinski, 1 Vet. App. 365 (1991).  VA not only has a heightened obligation to explain its findings and conclusions, but a heightened duty to consider the benefit-of-the-doubt rule.  O’Hare, 1 Vet. App. at 367; Dixon v. Derwinski, 3 Vet. App. 261, 263-64 (1992).  However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).
Burden of Proof
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 
To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Entitlement to service connection for a testicle disorder to include sterilization.
The Veteran asserts that his testicle disorder with sterilization was caused by his presumed exposure to herbicide agents. 
To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2012).
Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6) (2018).  If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops one of the disease listed under 38 C.F.R. § 3.309(e), to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied.  38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2018).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id.  The Veteran’s personnel records document his service in the Republic of Vietnam.  Therefore, the Veteran is presumed to have been exposed to herbicides in service.
The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2018).  Therefore, a testicle disorder with sterilization may not be granted on a presumptive basis. 
Nevertheless, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
Private treatment records from February 2011 show treatment for a penile papilloma.  The papilloma was removed in April 2011.  In September 2012, he was found to have a lump above his left testicle.  The diagnosis was hydrocele and left varicocele.  Treatment records dated in September 2013 note a questionable history of testicular mass.  An October 2013 ultrasound of the scrotum did not reveal any masses.  He was noted to have a small epididymal cyst, which was benign and did not require any treatment.  The impression was multiple left epididymal cysts and small to moderate bilateral varicoceles. 
In November 2014, the Veteran reported that testing performed in 1985 showed that he was sterile. 
Based on the above, the Board finds that service connection is not warranted because the preponderance of the evidence shows that a testicle disorder with sterilization was not present during service, for many years after service, and is not otherwise related to service, to include his presumed herbicide agent exposure.  
The earliest documented evidence of a testicle disorder was February 2011, almost 40 years after the Veteran’s separation from service.  The Veteran claimed that he was found to be sterile in 1985, which is 13 years after his separation from service.  Such a lapse of time is a factor for consideration in deciding a service connection claim.  Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000).  The Veteran has not asserted that his testicle disorder with sterilization originated during service and there is no competent medical evidence of record that links his disorder to military service.  The Veteran has not submitted a medical opinion or medical literature indicating that his testicle disability is related to his presumed herbicide agent exposure.  Additionally, the medical treatment records addressing his testicle disability do not indicate or otherwise suggest that it is related to the Veteran’s military service or herbicide agent exposure.  To date, the only evidence indicating that the Veteran’s condition is related to his herbicide agent exposure are his own conclusory assertions.
To the extent that the Veteran contends that his claimed disorder is related to service, the Board finds that such an opinion is more suited to the realm of medical, rather than lay, expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  There is no indication that the Veteran has had any specialized education, training, or experience in determining the etiology of testicle disorders or sterilization.  Accordingly, the Board finds that the requirement for a nexus has not been met.  In addition to the lack of medical expertise, the Veteran has not asserted chronic symptoms related to his testicle disability since his separation from active duty military service. 
Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) (2012) regarding reasonable doubt are not applicable.  Therefore, service connection for a testicle disorder with sterilization is denied.
REASONS FOR REMAND
1. Entitlement to service connection for a skin disorder is remanded.
2. Entitlement to service connection for blisters on the head and hands is remanded. 
The Veteran asserts that he is entitled to service connection for a skin disorder and for blisters on the head and hands.  He states that he noticed blackheads on his forearms and forehead about three months after he entered Vietnam and that his skin symptoms progressed until six months following his separation from service. 
The Veteran’s service treatment records are unavailable.  Post-service treatment records show treatment for various skin disorders, to include seborrheic keratosis, dermatitis, neoplasms under the skin, folliculitis, persistent cyst nodules, arm and hand rashes, hand eczema, and hyperkeratotic lesions.  A March 2005 private treatment record noted his exposure to Agent Orange and indicated that the Veteran experienced persistent cyst nodules and persistent enlarged nodules.  VA treatment records from September 2012, January 2013, and January 2014 noted the Veteran’s report of skin problems since his service in the Republic of Vietnam. 
The Veteran has not been afforded a VA examination with respect to his skin disorders and blisters claims.  In light of the above, the Board finds that the Veteran is entitled to a VA examination to determine whether his skin disorder and blisters on the head and hands are related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159 (c)(4)(i) (2018).
3. Entitlement to service connection for vertigo is remanded.
The Veteran asserts that he is entitled to service connection for vertigo.  The Board notes that the Veteran is service connected for bilateral hearing loss and tinnitus. As discussed below, the evidence suggests that his vertigo may be secondary to his service-connected disabilities. 
A May 2006 private treatment record showed treatment for vertigo and noted that it was possibly Meniere’s disease.  An April 2007 private treatment record noted a history of vertigo since June 2005.  At that time the Veteran’s vertigo was triggered by moving his neck quickly and frequently.  An April 2013 VA audiology record also noted occasional episodes of vertigo.  An August 2014 VA otolaryngology consult noted asymmetrical hearing loss.  A November 2017 VA otolaryngology note documented asymmetrical hearing loss with better hearing in his left ear.  He reported intermittent episodes of complete loss of hearing in the left ear, which returned immediately.  A magnetic resonance imaging (MRI) was ordered and scheduled for December 2017, however, the results of the MRI have not been associated with the claims file.  The VA audiological examinations conducted during this period do not include any findings related to his vertigo. 
Based on the above, the Board finds that the Veteran is entitled to a VA examination to determine whether his vertigo is related to his service-connected disabilities.  See McLendon v. Nicholson, 20 Vet. App. 79; see also 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159 (c)(4)(i) (2018).
On remand, the results of the MRI must be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
4. Entitlement to service connection for a left thumb tendon/punji stick wound residual. 
The Veteran asserts that he is entitled to service connection for a left thumb tendon/punji stick wound residual. 
A July 2015 VA treatment record indicated that the Veteran had a longstanding history of a war injury that caused hyperextension of his left thumb interphalangeal joint.  He reported that he had a laceration to his hand when he was in Vietnam and felt a popping sensation after he returned from Vietnam.  He stated that he was unable to flex the interphalangeal joint of the left thumb since that time.   
In a September 2017 statement, the Veteran described how he injured his thumb during service.  He explained that he was crawling through the jungle and mistakenly placed his left hand on a punji stick that was inside of a piece of wood. 
The Veteran has not been afforded a VA examination to determine the etiology of his claimed left thumb tendon/punji stick wound residual.  Given the low threshold established in McLendon and in light of VA’s heightened duty to assist in the development of claims when service treatment records are missing, the Board finds it appropriate to afford the Veteran an examination to determine the nature and relationship to service of claimed his left thumb tendon/punji stick wound residual. See McLendon v. Nicholson, 20 Vet. App. 79; see also 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159 (c)(4)(i) (2018).
5. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to left thumb arthrodesis, left carpal tunnel release, hardware removal, interphalangeal fusion with internal fixation, and reexploration and fusion (in flexion) of the left thumb interphalangeal joint, is remanded. 
VA treatment records show that the Veteran underwent multiple surgeries for his left carpal tunnel syndrome and left thumb injury.  His initial surgery was in August 2015 and he underwent an interphalangeal fusion with internal fixation, open thumb arthrodesis, and a carpal tunnel release.  He underwent another surgery in August 2015 because there was a failure of the screw to get compression on the proximal phalanx.  His symptoms worsened in October 2015 due to a soft tissue infection and localized cellulitis of the left thumb, which was treated with antibiotics.  Subsequent VA treatment records show that his left thumb was straight, not bent and that he had decreased sensation with some sensitivity in the dorsal distal thumb.  His symptoms continued, with worsened two point discrimination in the median nerve distribution, weak abduction and opposition of the left thumb, numbness of the eponychial fold of the left thumb, and positive median Tinel’s sign.  The surgeon noted recurrent left carpal tunnel disease, possibly caused by scarring.  
In March 2017, the Veteran underwent a revision surgery consisting of a left thumb interphalangeal joint open arthrodesis with plate and screws to achieve improved interphalangeal joint flexion.  Subsequent VA treatment records noted that the numbness and tingling in the median nerve distribution was not expected post carpal tunnel release.  The examiner noted that the possibility of some permanent scarring and long-term median nerve damage was present.  In October 2017, the Veteran’s right thumb pulp was numb and showed no improvement. The interphalangeal joint of the thumb was straighter than on re-fusion and was a more fibrous union.  The surgeon discussed alternatives for further treatment. 
The Veteran’s representative requested that the Board obtain medical quality assurance records created in connection with the Veteran’s left thumb surgeries. The Board finds that remand is warranted to attempt to obtain any relevant quality assurance reports, given the Veteran’s request for such records and the possibility that such records, if available, may contain evidence relevant to the Veteran’s claim.
In light of the representative’s request, the Board finds that a remand is required to attempt to obtain medical quality assurance records relevant to the claim.  VA’s medical quality assurance program consists of systemic healthcare reviews carried out by or for VA for the purpose of improving the quality of medical care or improving the utilization of healthcare resources in VA medical facilities. Such data may relate to the structure, process, or outcome of healthcare provided to the Veteran.  38 U.S.C. § 17.500(c) (2012).
Under 38 U.S.C. § 5705, records created as part of the medical quality assurance program are confidential and access is limited.  VA quality assurance records are not the outpatient or inpatient records generated to document the treatment provided to the Veteran. Instead, these records are produced by VA, often in the form of peer review, to study outcomes at VA and determine if administrative action is needed to improve VA healthcare in the future. The records are confidential to protect the identities of peer reviewers and promote frank discussion. 
In VAOPGCPREC 1-2011, the VA General Counsel held that VA’s duty to assist requires agencies of original jurisdiction (AOJ) and the Board to request access to any quality-assurance records relevant to a claim.  If the appropriate VHA officials deny the request, then VA General Counsel may be asked to make the determination.  If both VHA and VA General Counsel conclude the records are confidential and privileged, then neither the AOJ nor the Board may review the documents.  It is important to note that quality assurance records are not generated in every case, so it is possible there are no such records pertaining to the Veteran.
Finally, the Veteran has not been afforded a VA examination regarding his claim.  As the evidence shows repeated left hand surgeries, as well as an indication of some long-term damage, the Board finds that a remand is required to determine whether the Veteran incurred an additional disability after VA care and whether that disability was caused by VA hospital care, medical or surgical treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care or medical or surgical treatment or was a result of an event not reasonably foreseeable.
6. Entitlement to a compensable rating for bilateral hearing loss is remanded. 
The Veteran most recently underwent a VA examination to assess the severity of his service-connected bilateral hearing loss in August 2017.  In November 2017, the Veteran was seen by a VA otolaryngologist, who noted that the Veteran had recently experienced intermittent episodes of complete loss of hearing in his left ear.  
Therefore, given that there is an indication that the Veteran’s bilateral hearing loss may have increased in severity since the most recent VA examination, the Board finds that a new VA examination is needed to determine the current severity of the Veteran’s service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).
The matters are REMANDED for the following actions:
1. Request access to records of “quality assurance review” as defined in 38 U.S.C. § 17.500(c) as to treatment and surgery for the left thumb disorder and left carpal tunnel syndrome conducted at the Samuel S. Stratton VA Medical Center (VAMC) or other VA entity from July 2015 to present. The letter requesting access to records of “medical quality assurance” should advise the appropriate official that in accordance with VAOPGCPREC 1-2011, if access is denied, the basis for the denial must be provided and the official must state whether the documents fall into one of the following three categories:
(a.) Protected from disclosure by 38 U.S.C. § 5705;
(b.) Described and designated in advance of the activity at the facility level as protected in the facility quality assurance plan or other policy document in accordance with 38 C.F.R. § 17.501 (b); or,
(c.)  The requested records or documents no longer exist or cannot be found.
Any response must be in writing and documented in the claims files.  If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e).
If the appropriate VHA official confirms that such records exist, but are privileged under the Quality Assurance Act, then forward the request to the Office of the General Counsel.
If the appropriate VHA official and the General Counsel agree that the documents are privileged, this should be documented in the claims file.
If the VHA official and the General Counsel conclude that the records are not protected and access is granted, request the “quality-assurance review” and/or “focused review” records and associate any copies with the claims file.
2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include the results of the MRI ordered by the VA otolaryngologist in November 2017.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e) (2018). 
3. Then, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his skin disorder and blisters on the head and hands.  All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must identify all skin disorders present during the period of the claim.  With respect to each skin disorder that has been present during the period of the claim, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that each disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran’s military service, to include exposure to herbicides during service.
In doing so, the examiner must consider and discuss the Veteran’s statements that his skin symptoms started three months after he entered the Republic of Vietnam and continued since then. 
The examiner must provide a complete rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
4. Then, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his vertigo.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated tests and studies should be performed.  Following a review of the relevant records and lay statements, the examiner must address whether it is at least as likely as not (50 percent probability or greater) that the disorder was caused by or aggravated by his service connected bilateral hearing loss and tinnitus. 
In doing so, the examiner must consider and discuss the medical records showing asymmetrical bilateral hearing loss and possible Meniere’s disease. 
The examiner must provide a complete rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
5. Then, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his left thumb tendon/punji stick wound residual.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated tests and studies should be performed.  Following a review of the relevant records and lay statements, the examiner must address whether it is at least as likely as not (50 percent probability or greater) that the disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran’s military service, to include the Veteran report of his in-service thumb injury. 
In so opining, the examiner should address the Veteran’s March 1971 Report of Medical Examination at induction noting that the Veteran had a scar on the palm of his left hand.  
The examiner must provide a complete rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
6. Then, afford the Veteran a VA examination by a physician with sufficient expertise to address the Veteran’s claim under 38 U.S.C. § 1151.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated tests and studies should be performed.  Following a review of the relevant records and lay statements, the examiner must address whether it is at least as likely as not (50 percent probability or greater) that the Veteran sustained any additional disability as a result or, or that is proximately due to, the left hand surgeries performed on August 12, 2015, August 28, 2015, and March 22, 2017, at the Samuel S. Stratton VAMC.  The examiner must identify each additional disability resulting from the left hand surgeries.  For each additional disability identified, the examiner must provide an opinion as to the following: 
(a.) Whether the additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance fault on the part of VA in performing the August 12, 2015, August 28, 2015, or March 22, 2017 left hand surgeries. 
(b.) Whether the proximate cause of the additional disability was due to an event not reasonably foreseeable (one that a reasonable health care provider would not have considered an ordinary risk of the treatment provided).
The examiner must provide a complete rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
7. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected bilateral hearing loss.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.  The examiner must comment on the Veteran’s report of intermittent episodes of complete loss of hearing in the left ear and the MRI ordered by the VA otolaryngologist in November 2017. 
8. Then, readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action.
 
J. A. Anderson
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. N. Nolley, Associate Counsel