Citation Nr: 18152398 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-28 120 DATE: November 21, 2018 ORDER Entitlement to service connection for hearing loss disability is denied. REMANDED The issue of entitlement to service connection for erectile dysfunction is remanded. The issue of entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Bilateral hearing loss disability did not have onset during active service, was not caused by active service and did not manifest within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to December 1969. The DD Form 214 indicates an additional one year period of service as well. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran contends that he developed hearing loss due to noise exposure during service. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Initially, the Board finds that the preponderance of evidence is against a finding that the Veteran’s hearing loss manifested itself to a degree of disability of 10 percent or more within a year of his discharge from service in 1969. The one-year presumption for sensorineural hearing loss under 38 C.F.R. §§ 3.307 and 3.309 is therefore not helpful. The Veteran established VA care in 2002, but did not complain of hearing loss symptoms until April 2008. These facts, together with the long period of time following service prior to any documented statement or medical evidence regarding hearing loss is more probative than the Veteran’s recollections, expressed many years after service. As for direct service connection, an April 2011 VA examination reflects that the Veteran has a current diagnosis of bilateral sensorineural hearing loss. Speech recognitions scores were 80 to 92 percent in the left ear, and 70 percent in the right ear. Thus, he has a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The first element of service connection, a current disability, is met. The Veteran claims that he was exposed to artillery, bombs, gunfire, mortars, and jet engine noise during combat service in Vietnam. His DD Form 214 indicates that his military occupational specialty (MOS) was an information operations and intelligence specialist. He is a recipient of the Vietnam Service Medal, Combat Infantryman Badge, and Expert Rifle Badge. Therefore, in-service noise exposure as likely as not occurred. The remaining question is whether hearing loss disability was incurred in service or is otherwise due to in-service noise exposure. The April 2011 VA examiner commented on the issue of medical nexus. The report notes that the Veteran reported post-service work in 1970 as a CNA at a lumber mill, from 1980 to 1993 as a correctional officer with hearing protection, and from 1994 to 2007 as a CNA with no noise exposure. He denied recreational firearm use, noisy tools, or noisy hobbies. The examiner opined that the Veteran’s current hearing loss was not caused by or the result of acoustic trauma from in-service noise exposure. As a rationale, the examiner referenced entrance and separation audiograms that did not show significant decrease in hearing levels or standard threshold shifts despite unprotected noise exposure. The examiner noted that his opinion was based on review of the evidence and clinical expertise. The Board finds the examiner’s opinion to be well reasoned and thorough, having considered the entire record, as well as the Veteran’s historical accounts and providing specific medical evidence for the opinion rendered. Further, the opinion is consistent with service treatment records that contain no complaints of, or treatment for, hearing loss symptoms. On October 1969 separation, in a report of medical history, the Veteran marked “no” to hearing loss, and ear, nose, or throat trouble. Clinical evaluations were normal. Post-service, the Veteran established VA treatment in 2002 but did not complain of any hearing loss symptoms until 2004. Therefore, the examination report warrants probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that “most of the probative value of a medical opinion comes from its reasoning” and that “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions”). To the extent the Veteran claims that he has had continuous hearing loss symptoms since service, he is competent to do so. However, his statements regarding the onset of hearing loss are not credible due to inconsistency with other evidence of record. Notably, the Veteran did not complain of hearing loss until 2004, approximately 35 years after service. The Board notes that the passage of time between the Veteran’s discharge and complaints of symptoms or an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no medical records discussing hearing loss symptoms prior to this date. If the Veteran had continuous symptoms in and since service, it is likely that there would be some earlier recorded indication of hearing loss symptoms, or the Veteran would have at least complained of symptoms when he initially sought VA care. Therefore, the Board finds that the Veteran’s statements as to the onset and continuity of hearing loss symptoms not credible. The Board must conclude that the weight of the evidence is against the claim of service connection for bilateral hearing loss. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for hearing loss disability is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that he has erectile dysfunction secondary to his service-connected diabetes mellitus disability. The April 2011 VA examiner opined that erectile dysfunction was not due to or aggravated by service-connected diabetes mellitus because the Veteran reported having erectile dysfunction symptoms since 2007 and diabetes mellitus was not diagnosed until 2009. The examiner also noted that a “contributing cause” of erectile dysfunction is his psychological condition. As the Veteran is currently service-connected for PTSD, the Board finds that the April 2011 VA examiner’s opinion raises the issue of secondary service connection with regard to this claim. See 38 C.F.R. § 3.310. As such, a new examination is necessary. 2. Entitlement to an initial rating in excess of 10 percent for PTSD is remanded. The Veteran requests a higher initial rating for PTSD, currently evaluated as 10 percent disabling. In an October 2018 appellate brief, the Veteran, by and through his representative alleged that his PTSD had worsened since his April 2011 VA examination. He claimed an increase in symptoms affecting his social and occupational functioning, as described in a lay statement provided by his wife. In support of his substantive appeal, the Veteran submitted a July 2014 letter from his wife stating that the Veteran has violent sleep disturbances, paranoia, and memory impairment. Specifically, the wife reported that the Veteran has violent dreams, that she cannot talk to anyone on the telephone without the Veteran asking, “who are you talk to.” She also reported that the Veteran misplaces items and accuses her of taking them. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In light of the foregoing, the Veteran should be afforded a new examination to determine the current severity of his PTSD and related symptoms.   The matters are REMANDED for the following action: 1. Obtain any VA medical evidence not currently included in the claims file. 2. Schedule an examination to determine the nature and etiology of erectile dysfunction. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., 50 percent probability or more) that erectile dysfunction is caused by or due to service-connected disability such as diabetes or PTSD? (b) If the answer to (a) is negative, is it at least as likely as not that erectile dysfunction has been aggravated (i.e. chronically worsened in severity) by service-connected disability such as diabetes or PTSD. Please explain in detail any opinion provided. If the examiner is unable to provide an opinion without resort to speculation, the examiner should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be considered in formulating any opinion. 3. Schedule an examination to determine the nature and severity of PTSD. After reviewing the claims file and examining the Veteran, the examiner should detail all symptomatology associated with the psychiatric disability and its effect on social and occupational functioning. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel