Citation Nr: 20003191 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 14-00 950 DATE: January 15, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for left ear hearing loss is denied. The issue of entitlement to service connection for cirrhosis, to include as secondary to posttraumatic stress disorder (PTSD), has been withdrawn. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for tuberculosis is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for chronic musculoskeletal pain, or fibromyalgia is remanded. Entitlement to service connection for fatty liver is remanded. Entitlement to service connection for hepatitis B virus is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 2. The Veteran’s ED is caused by or aggravated by his service-connected PTSD. 3. A left ear hearing loss disability has not been shown during the pendency of the appeal. 4. On the record at the January 24, 2019 hearing, the Veteran requested withdrawal of the claim of service connection for cirrhosis, to include as secondary to PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for ED as secondary to PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for withdrawal of the claim of service connection for cirrhosis, to include as secondary to PTSD, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1981 to March 1985. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the record. The Board notes that the Veteran has had pending claims for an increased rating for PTSD and an earlier effective date for a temporary grant of a 100 percent rating for PTSD. At the January 2019 hearing, the Veteran expressed his desire to continue to pursue these claims. However, a September 2019 rating decision granted the Veteran a 100 percent rating for PTSD for the entire period on appeal. As this is a full grant of benefits sought, the issues of an increased rating for PTSD and an earlier effective date for a temporary grant of a 100 percent rating are no longer before the Board. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including organic disease of the nervous system such as tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (finding tinnitus to be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a)). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for tinnitus The Veteran contends that he suffers from tinnitus related to in-service exposure to harmful noise. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his ears, then a diagnosis of tinnitus is generally applied without further examination. The Board notes that the Veteran’s service treatment records are silent as to any complaints, treatment, or diagnosis of tinnitus. The Veteran’s service personnel records show that he was a combat engineer with service in Japan. At the January 2019 hearing, the Veteran testified that he was exposed to explosions on a weekly basis during service, and that ringing in his ears started during service. The military occupational specialty (MOS) of combat engineer may carry a high probability rating for hazardous noise exposure. Therefore, exposure to harmful noise during service has been established. The Veteran was provided a VA examination in September 2015. At that examination, the examiner determined that it was less likely as not that the Veteran’s tinnitus was caused by or a result of noise exposure while in service. The examiner noted that the Veteran’s military occupational specialty (MOS) of combat engineer may carry a high probability rating for hazardous noise exposure. The examiner also noted that the Veteran denied civilian occupational and recreational noise exposure. However, the examiner found that the Veteran’s service treatment records documented normal auditory thresholds for both ears when the hearing tests were conducted at enlistment and separation. The examiner concluded that the Veteran’s reported tinnitus is less likely as not caused by or a result of Veteran’s military noise exposure. As previously noted, the Board finds that in-service noise exposure has been established. The Veteran has also stated that he first noticed ringing in his ears while in service and that he has continued to experience tinnitus since that time. The Board finds the Veteran’s lay testimony to be of particular importance for this claim, as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. In particular, the Board finds the Veteran competent to report ringing in his ears. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). While the September 2015 examiner provided a negative nexus opinion regarding whether the Veteran’s tinnitus was related to his active duty service, the Board finds that, given the Veteran’s credible lay statements, the evidence is at least in relative equipoise on this matter. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD The Veteran has been found to be service-connected for posttraumatic stress disorder (PTSD), to include memory loss, alcohol and substance abuse in remission. The Veteran contends that he suffers from erectile dysfunction (ED) secondary to his service-connected PTSD. Specifically, the Veteran believes his PTSD medication causes ED. In July 2015, the Veteran was provided with a VA male reproductive system examination. The examiner reviewed the Veteran’s medical history and conducted a telephone interview with the Veteran. The examiner diagnosed the Veteran with ED. The examiner noted that the Veteran has a long-documented history of cocaine misuse and alcohol misuse, both of which can lead to ED. The examiner concluded that it would be mere speculation to state whether his ED is due to these contributing factors or to his PTSD medication. The Board finds that the July 2015 medical examiner’s opinion supports a positive nexus between the Veteran’s service-connected PTSD with alcohol and substance abuse and his current ED. The Veteran’s alcohol and substance abuse are considered part of his service-connected PTSD, as are the side effects of his PTSD medication. Thus, the Veteran’s ED is caused by or aggravated by his PTSD. Entitlement to service connection for ED, secondary to PTSD, is warranted. 3. Entitlement to service connection for left ear hearing loss The Veteran contends that he suffers from bilateral hearing loss as a result of his exposure to harmful noise during service. The Veteran’s claim for right ear hearing loss is discussed further in the remand section below. For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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. On the authorized VA audiological evaluation in September 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 35 45 LEFT 25 30 20 25 35 Speech audiometry revealed speech recognition ability of 100 percent in both the right ear and the left ear. These findings are sufficient to establish a current hearing loss disability in the right ear, but not in the left ear. 38 C.F.R. § 3.385. None of the relevant left ear auditory thresholds are 40 decibels or greater, and only two auditory thresholds are 26 decibels or greater. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Regarding the Veteran’s claim for left ear hearing loss, in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran’s statements that his active duty service caused left ear hearing loss. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., hearing loss; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, in this case he is not competent to independently render a medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Without competent evidence of a diagnosis of a left ear hearing loss disability under 38 C.F.R. § 3.385, the Board must deny the Veteran’s claim. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for left ear hearing loss must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for cirrhosis, to include as secondary to PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. At the January 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of service connection for cirrhosis secondary to PTSD. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. See Hearing Transcript at p. 2. The Veteran’s full understanding of the consequences is shown based on the fact that prior to the hearing, the consequences of withdrawal of these claims were fully discussed by the undersigned and the Veteran’s representative. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this claim. Accordingly, the Board does not have jurisdiction to review this claim on appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability is remanded. In a January 2011 statement, the Veteran indicated that his pre-existing foot condition was worsened in service due to aggravating circumstances. The Veteran’s January 1981 entrance examination showed mild pes planus bilaterally. In a May 2010 rating decision, the Veteran’s claim was denied because there was no current diagnosis of a bilateral foot disability. However, the Veteran is competent to report his own symptoms, including pain in his feet. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that a VA medical examination is warranted to determine the nature and etiology of any bilateral foot condition, and whether any such condition was aggravated by service. 2. Entitlement to service connection for tuberculosis is remanded. In a January 2011 statement, the Veteran indicated that he was treated for PPD during service, and that he did not have this condition during service. The Veteran’s service medical records note a positive purified protein derivative (PPD) skin test, a test that determines the existence of tuberculosis. The Veteran’s service treatment records also show treatment for conditions diagnosed as a cold, acute bronchitis, and a “rule out” diagnosis of pneumonia. The issue of whether the Veteran currently suffers from tuberculosis related to service is medically complex, and the Board is precluded from exercising its own judgement on a medically complex matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that a VA medical examination is warranted to determine the nature and etiology of any tuberculosis. 3. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. 4. Entitlement to service connection for chronic musculoskeletal pain, or fibromyalgia (FM), is remanded. 5. Entitlement to service connection for fatty liver is remanded. 6. Entitlement to service connection for hepatitis B virus is remanded. 7. Entitlement to service connection for a heart disability is remanded. 8. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. As discussed above, the Board is prohibited from exercising its own judgment in medically complex matters. See Colvin, 1 Vet. App. at 175. The Veteran has not been provided VA medical examinations related to his claims of service connection for CFS, FM, fatty liver, hepatitis B, heart disability, and sleep disorder. The Board finds that VA medical examinations are necessary to determine the nature and etiology of these conditions. 9. Entitlement to service connection for migraines, to include secondary to service-connected PTSD, is remanded. The Veteran’s original claim of service connection contended that he suffered from headaches secondary to his PTSD. An October 2016 VA medical examiner found that the Veteran’s migraines were less likely than not secondary to his PTSD. First, the Board notes that the October 2016 VA medical examiner did not address whether the Veteran’s migraines were aggravated by his service-connected PTSD. Second, the Board notes that at the January 2019 hearing, the Veteran claimed that his headaches were due to exposure to explosions during service. The Veteran’s service treatment records show complaints of headaches in 1981. The Board finds that a VA medical examination is necessary to determine whether the Veteran’s migraines are directly related to exposure to explosions during service, or whether they were aggravated by the Veteran’s service-connected PTSD. 10. Entitlement to service connection for right ear hearing loss is remanded. At the September 2015 VA audiology examination, the Veteran was diagnosed with right ear hearing loss under the VA criteria. Regarding the etiology of this condition, the examiner found that it was not related to service because auditory thresholds were normal from an enlistment examination in March 1982 to a separation examination in February 1985. The Board finds the September 2015 opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. The examiner based his negative opinion, in part, on the fact that the Veteran’s hearing was within normal limits at separation. However, Hensley v. Brown, 5 Vet. App. 155, 157 (1993), makes clear that a lack of objective evidence of hearing loss during military service, or at separation from service, is not fatal to a service connection claim. A remand of the claim for right ear hearing loss is required to obtain an opinion compliant with Hensley. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability. The examiner must opine as to whether the Veteran’s pre-existing pes planus was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any tuberculosis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must address the Veteran’s service treatment records which contain a positive PPD and treatment for lung conditions such as acute bronchitis and a “rule out” diagnosis of pneumonia. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic fatigue syndrome. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic musculoskeletal pain, to include fibromyalgia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any fatty liver disease. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hepatitis B. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must address whether any sleep disorder is a symptom of the Veteran’s service-connected PTSD, or a separate disability. If a separate sleep disorder disability is found, the examiner must opine was to whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, to include PTSD. A separate opinion and rationale should be provided for both the issues of causation and aggravation. 9. Return the claims file to the VA examiner who conducted the Veteran’s October 2016 VA headache examination. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the October 2016 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, to include the Veteran’s lay statements concerning his in-service exposure to explosions, and service treatment records which note complaints of headaches, the examiner should opine as to whether it is at least as likely as not that the Veteran’s migraines had its onset during, or is otherwise related to, his active duty service. The examiner must also opine was to whether the Veteran’s headaches at least as likely as not were aggravated beyond their natural progression by service-connected disability, to include PTSD. Separate opinions and rationales should be provided for both the issues of causation and aggravation. 10. Return the claims file to the VA examiner who conducted the Veteran’s September 2015 VA audiology examination. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the September 2015 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. Following a review of the entire record, to include the Veteran’s lay statements concerning his in-service noise exposure, the examiner should opine as to whether it is at least as likely as not that the Veteran’s right ear hearing loss had its onset during, or is otherwise related to, his active duty service. In rendering an opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.