Citation Nr: 18128024 Decision Date: 08/22/18 Archive Date: 08/21/18 DOCKET NO. 15-19 746 DATE: August 22, 2018 ORDER Entitlement to service connection for a bilateral foot disorder, to include as secondary to service-connected lumbar and cervical spine disorders is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar and cervical spine disorders is denied. Entitlement to service connection for a urinary disorder, to include as secondary to service-connected lumbar and cervical spine disorders is denied. Entitlement to service connection for a headache disorder, to include as secondary to service-connected lumbar and cervical spine disorders is denied. Entitlement to service connection for a bowel disorder, to include as secondary to service-connected lumbar and cervical spine disorders is denied. Entitlement to a compensable evaluation for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. A foot disorder was not manifest during service and arthritis was not manifest within one year of separation. A foot disorder is unrelated to service. 2. The Veteran’s foot disorders are not shown to be caused or aggravated by a service-connected disease or injury. 3. Erectile dysfunction was not manifest in service and is unrelated to service. 4. Erectile dysfunction is not shown to be caused or aggravated by a service-connected disease or injury. 5. A urinary disorder was not manifest in service and is unrelated to service. 6. A urinary disorder is not shown to be caused or aggravated by a service-connected disease or injury. 7. A headache disorder was not manifest in service and is unrelated to service. 8. A headache disorder is not shown to be caused or aggravated by a service-connected disease or injury. 9. A bowel disorder was not manifest during service and rectal carcinoid was not manifest within one year of separation. A bowel disorder is unrelated to service. 10. A bowel disorder is not shown to be caused or aggravated by a service-connected disease or injury. 11. Audiometric examinations correspond to a level II hearing loss for the right ear and a level II hearing loss for the left ear. CONCLUSIONS OF LAW 1. A foot disorder was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1131, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. A foot disorder is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310 (2017). 3. Erectile dysfunction was not incurred in or aggravated by service. 38 U.S.C. §§ 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 4. Erectile dysfunction is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310 (2017). 5. A urinary disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 6. A urinary disorder is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310 (2017). 7. A headache disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 8. A headache disorder is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310 (2017). 9. A bowel disorder was not incurred in or aggravated by active service and rectal carcinoid may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 10. A bowel disorder is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310 (2017).   11. The criteria for an initial compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.85, Diagnostic Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to May 1987. The Board notes that the Veteran has filed a timely Form 9 Substantive Appeal with respect to six other issues. However, those issues have not yet been certified to the Board and the record indicates that the RO may be undergoing development relevant to those matters. As a result, the Board will not address those issues. Service Connection The Veteran’s primary assertion is that his claimed foot, erectile, urinary, headache and bowel disorders are secondary to his service-connected lumbar spine and cervical spine disorders. The Board notes that he has also asserted that such disorders may be secondary to an in-service fall. 1. Entitlement to service connection for a bilateral foot disorder, to include as secondary to service-connected lumbar and cervical spine disorders 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar and cervical spine disorders 3. Entitlement to service connection for a urinary disorder, to include as secondary to service-connected lumbar and cervical spine disorders 4. Entitlement to service connection for a headache disorder, to include as secondary to service-connected lumbar and cervical spine disorders 5. Entitlement to service connection for a bowel disorder, to include as secondary to service-connected lumbar and cervical spine disorders Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a 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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has been diagnosed with arthritis of the bilateral first metatarsophalangeals and rectal carcinoid. Arthritis and malignant tumors are identified as a “chronic disease” under 38 § U.S.C. 1101 and 38 C.F.R. § 3.309 (a). “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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. 3.303 (b). The Veteran has been diagnosed with bilateral first metatarsophalangeal osteoarthritis, bilateral plantar fasciitis, bilateral calcaneal spur, urinary frequency, urinary incontinence, erectile dysfunction, tension headaches and rectal carcinoid. Service treatment records do not document any relevant symptoms, complaints, treatment, or diagnoses for the claimed foot, erectile, urinary, headache or bowel disorders. Clinical evaluation at an April 1987 separation examination revealed that the relevant symptoms were normal. In an accompanying Report of Medical History, the Veteran specifically denied any relevant symptoms and noted that “I am in good health. The only thing that I have been treated for was minor colds and a stiff neck and back.” The Board does note that the Veteran reported foot trouble. However, a review of service treatment records indicates treatment for athlete’s foot, which the Veteran does not currently have. There is no evidence that the Veteran was referencing any other type of foot disorder or symptoms in service, or that the Veteran’s in-service athlete’s foot was related to any current foot disorder or resulted in a chronic disorder. The Veteran has not submitted any evidence, to include medical opinions, to support his bare assertions that these claimed disorders are directly related to service. There is no medical opinion that purports to relate any post-service diagnosed foot, erectile, headache, urinary or bowel disorder to service. Simply put, there is no evidence of an in-service incurrence or aggravation of a disease or injury or a nexus between any present foot, erectile, urinary, headache or bowel disorder and service. Shedden, supra. The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertion. To the degree that he has asserted a continuity of symptoms since service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a relevant diagnosis during service or immediately thereafter. Id. Physical examination upon separation from service revealed that relevant systems were normal. In sum, there is no reliable evidence linking these disorders to service. The contemporaneous records establish that there were no documented manifestations of such disorders in service, relevant systems were physically normal upon separation, there were no manifestations of arthritis of the feet or rectal carcinoid within one year of separation, and arthritis of the feet and rectal carcinoid were first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset and continuity and treatment. Here, chronic disease (arthritis) of the feet and bowel (rectal carcinoid) was not “noted” during service or within one year of separation within the meaning of section 3.303(b). Service treatment records do not show a combination of manifestations sufficient to identify the disease entities, and sufficient observation to establish chronicity at the time. Furthermore, the evidence does not establish that arthritis of the feet or rectal carcinoid was manifest to a compensable degree with one year of separation. 38 C.F.R. §§ 3.307; 3.309. The more probative evidence establishes that he did not have a relevant disorder during service or a chronic foot or bowel disorder within one year of separation. Furthermore, the evidence establishes that the remote onset of these disorders is unrelated to service. The Board recognizes that VA medical opinions specific to direct service connection were not obtained for these claims. However, medical opinions specific to direct service connection are not necessary for the adjudication of these claims. Here, there is no evidence of record with respect to an in-service event, injury, or disease, and no evidence of record that the current disorders may be related to the Veteran’s service. There is sufficient medical evidence of record to make a decision here. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Furthermore, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In other words, absent such evidence, the Board finds that it is unnecessary to require the Veteran to report for a VA medical examination or to ask a medical expert to review the record specific to direct service connection because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disabilities in service.   Secondary Service Connection Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310 (b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In March 2012 VA medical opinions, a VA examiner concluded that the Veteran’s diagnosed foot, erectile, urinary and headaches disorders were less likely than not proximately due to or related to the service-connected low back disorder. In subsequent September 2013 VA medical opinions, a separate VA examiner opined that the Veteran’s diagnosed foot, erectile, urinary, headache and bowel disorders were less likely than not related to his service-connected lumbar spine and cervical spine disorders, and there was no evidence of aggravation. The examiner provided thorough rationales for each opinion after a review of the Veteran’s claims file. The Board again acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his currently diagnosed disorder to his service-connected lumbar and cervical spine disorders. The only medical opinions of record addressing the claimed relationships are negative. No competent medical opinions linking these disorders to service-connected disorders have been presented. The VA examiners considered the Veteran’s lay assertions, but ultimately found that the Veteran’s current disorders were not caused by or aggravated by his service-connected lumbar and cervical spine disorders. The Board finds that the Veteran’s lay statements are outweighed by the VA examiners’ medical opinions as they were based on consideration of the Veteran’s contentions, review of medical records, and medical expertise. We also note that the Veteran is service connected for other disorders. However, there is no proof or allegation that the Veteran’s claimed disorders are caused or aggravated by these other disorders. In the absence of some proof of a relationship, there can be no valid claim. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s currently diagnosed foot, erectile, urinary, headache and bowel disorders are directly related to service, or in the alternative, secondary to service-connected disease or injury, and the claims must be denied. The preponderance of the evidence is against the Veteran’s claims and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). 6. Entitlement to a compensable evaluation for a bilateral hearing loss disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that a uniform noncompensable evaluation for bilateral hearing loss is warranted for the entire period on appeal. The Veteran is currently in receipt of a noncompensable evaluation for a bilateral hearing loss disability, effective March 17, 2011. The Veteran has challenged the initial evaluation. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). At an October 2011 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 40 45 50 55 48 100% LEFT 30 40 45 45 40 96% Applying 38 C.F.R. § 4.85, Table VI and Table VII, to the above audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left. Application of 38 C.F.R. § 4.85, Table VII, results in a 0 percent disability evaluation. At an August 2013 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 35 40 40 45 40 92% LEFT 25 40 40 45 38 92% Applying 38 C.F.R. § 4.85, Table VI and Table VII, to the above audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left. Application of 38 C.F.R. § 4.85, Table VII, results in a 0 percent disability evaluation. At an August 2015 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 50 55 50 55 53 86% LEFT 45 50 55 65 54 88% Applying 38 C.F.R. § 4.85, Table VI and Table VII, to the above audiological findings, the Veteran has a numeric designation of II for his right ear and II for his left. Application of 38 C.F.R. § 4.85, Table VII, results in a 0 percent disability evaluation. The preponderance of the evidence is against a compensable evaluation for a bilateral hearing loss disability at any point during the period on appeal. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. To the extent that the Veteran reports that his acuity is worse than evaluated, the Board has considered his statements. This evidence is competent. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel