Citation Nr: 21001559 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 13-08 272 DATE: January 8, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to an initial compensable rating for erectile dysfunction is remanded. FINDING OF FACT The most probative evidence of record does not demonstrate the Veteran has a current right ear hearing loss disability. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1965 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from numerous rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board took jurisdiction of the Veteran’s various claims in April 2015 and remanded them for additional development. Preliminary Matters Subsequent to the Board’s April 2015 remand, the RO, in a rating decision from January 2017 awarded special monthly compensation for the loss of a creative organ from August 18, 2009 and noted that a rating decision from January 2010 granted service connection for erectile dysfunction and evaluated it together with the Veteran’s diabetes. At this time the Veteran’s erectile dysfunction is service connected but has a noncompensable disability rating. The Veteran has also filed timely appeals of a May 2011 rating decision which initially denied his request for service connection for bilateral hearing loss. The case again reached the Board in October 2018 where once more the Board remanded the claims for service connection for right ear hearing loss and the request for an increased rating for erectile dysfunction. Upon remand, the Board ordered the RO to request from the Veteran a release and authorization for the VA to acquire private medical records from Orlando Ear, Nose & Throat Associates, P.A. in order to clarify whether the August 2010 speech discrimination testing conducted by that office used the Maryland CNC testing criteria. The Board also ordered the RO to afford the Veteran a new VA examination for his erectile dysfunction to determine the current nature and severity of the condition as well as for a medical opinion as to whether a cystic mass on his penis was reflective of internal or external penile deformity. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271(1998). The Board finds there has been substantial compliance in part with the Board’s prior remand. First, the RO correctly attempted to obtain the necessary release and authorization to acquire private medical records from Orlando Ear, Nose & Throat Associates, P.A. The VA sent a letter dated June 24, 2020 requesting the above release or submission of evidence to the Veteran’s address of record. As of the date of this decision, there has been no response nor has there been any indication that the address used was incorrect. VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran must aid in the development of his claim by providing the necessary release for medical records or submitting the necessary information as requested. If the Veteran fails to do so, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. Second, as will be discussed below, the resulting VA examination and medical opinion concerning the Veteran’s erectile dysfunction was not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that his right ear hearing impairment was incurred in, aggravated by or otherwise attributable to service. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Some chronic diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. For VA purposes impaired hearing is considered to be a disability when the auditory threshold shift in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hz is 40 dB HL or greater; or, when the auditory thresholds for at least three of these frequencies are 26 dB HL or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. At the outset, the VA has conceded that the Veteran was exposed to in-service acoustic trauma in light of his Combat Action Ribbon. Additionally, the December 2010 VA examination report and June 2010 private medical opinion indicate that the Veteran’s hearing loss is related to his in-service acoustic trauma. Thus, the second and third elements of service connection have been established. The Board acknowledges that a VA audiologist, who examined the Veteran in November 2016, ultimately reached a conclusion unfavorable to the Veteran. However, the examiner’s nexus opinion was based on the finding of normal hearing at the time of the examination. Therefore, the Board finds this opinion is of limited probative value for establishing a nexus. The sole remaining question before the Board is whether the Veteran has a current right ear disability for VA purposes. As the record below shows, the Board finds the Veteran does not have hearing loss in his right ear for VA purposes and therefore service connection is not warranted. To that effect, the claims file contains the following audiology examinations, with results as follows: August 23, 2010 [private examination] HERTZ 500 1000 2000 3000 4000 CNC RIGHT 25 25 20 20 25 90% LEFT 25 20 25 25 30 90% December 13, 2010 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 25 15 15 20 20 94% LEFT 25 10 15 15 20 94% November 12, 2016 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 10 10 15 15 15 96% LEFT 10 10 20 15 20 92% As shown above, the Veteran’s hearing in the right ear does not meet VA’s criteria for service connection for hearing loss on the basis of puretone frequencies. However, the private audiology exam from August 2010 indicates the Veteran’s speech discrimination score of 90 percent would in fact meet VA’s requirement for hearing loss. Unfortunately, there is no evidence establishing whether the correct testing criteria was used during this private examination. A hearing examination for VA purposes must include a pure tone audiometry test and Maryland CNC test. See 38 C.F.R. § 4.85. The Board recognizes its duty to assist in obtaining clarification of an examination report that reasonably appears to contain information necessary to decide a claim. Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). However, the duty to assist is not boundless in its scope. Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). The VA has a duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim." Id.; see 38 U.S.C. § 5103A. Here, the VA attempted to clarify whether or not the Maryland CNC word list was used by a letter dated June 24, 2020. Said letter requested additional records and/or a medical release for authorization from the Veteran to acquire medical records from Orlando Ear, Nose & Throat Associates, P.A. The Veteran has since not responded to the VA’s request. As such, the Veteran’s claims must be adjudicated based on the adequate evidence of record. See 38 C.F.R. § 3.655. The Board has considered the Veteran's statements and complaints; however, the Board determines that the evidence which shows the Veteran's valid speech discrimination findings using the Maryland CNC test and pure tone threshold findings is the most probative evidence in evaluating the Veteran's bilateral sensorineural hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Consequently, the only valid pure tone threshold and speech discrimination score results stem from the VA examinations in December 2010 and November 2016. Eliminating the private audiogram results above, leaves the Veteran with hearing loss in the right ear that does not meet VA requirements. 38 C.F.R. § 3.385. In fact, when compared to the audiology examination in December 2010, by November 2016 it appears as though the Veteran’s hearing has even improved. As such, the Veteran does not have a current right ear hearing disability and entitlement to service connection must be denied. The Veteran has also challenged the adequacy of VA hearing acuity testing and rating criteria because the testing is not performed in a background noise environment that is consistent with normal everyday life nor does it take into consideration the effects of aging coupled with impaired frequency selectivity. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that the Veteran's reported difficulties are factors contemplated in the regulations and schedular rating criteria. The Board also acknowledges the medical articles submitted by the Veteran’s representative in December 2020. However, the articles appear to be inconclusive, and, more problematically, not specific to the facts of this Veteran’s case. Therefore, the Board finds them to be significantly outweighed by the VA audiology examinations noted above, which were provided following examination of the Veteran and review of the claims file. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element)); Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In reaching the above conclusion, 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, that doctrine is not applicable in the instant appeal and the claim of entitlement to service connection for right ear hearing loss must be denied. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to an initial compensable rating for erectile dysfunction is remanded. In the Board’s October 2018 remand, it ordered the RO to schedule the Veteran for a new VA examination for his erectile dysfunction to determine the current nature and severity of the condition as well as for a medical opinion as to whether a cystic mass on his penis was reflective of internal or external penile deformity. In addition, the examiner was asked to discuss the November 2012 VA treatment record indicating a 1-cm cystic mass on the shaft of the penis and indicate whether this is reflective of an internal or external penile deformity within the meaning of VA diagnostic criteria. In particular, under Williams v. Wilkie, the Court held that the term “deformity” in the diagnostic criteria historically applied to erectile dysfunction by analogy, DC 7522, which awards a 20 percent disability rating for a “penis, deformity, with loss of erectile power,” and should be given its ordinary meaning “a distortion of the penis, either internal or external.” Williams v. Wilkie, 30 Vet. App. 134, 138-39 (2018). In response to the remand, the Veteran was afforded a VA examination in July 2020. The examiner’s opinion was not responsive to the question asked, but rather only provided a medical opinion stating the Veteran’s "penile deformity" was not due to, caused or aggravated by any service-connected conditions. The examiner did not respond to whether the Veteran’s cystic mass was reflective of an internal or external penile deformity. The examiner also did not opine as to the current severity of the Veteran’s erectile dysfunction. To be clear, the examiner provided a nexus opinion, which is wholly irrelevant here where the Veteran is already service connected for the disability. Accordingly, a new medical opinion is needed in order to be compliant with the Board’s prior remand directive and, further, to obtain the information necessary to properly rate the disability on appeal. See Stegall v. West, 11 Vet. App. 268, 271(1998). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination with an appropriate clinician to once again determine the current nature and severity of the Veteran’s erectile dysfunction. The claims file should be made available to the examiner for review in connection with the examination. Taking into account the medical and lay evidence in the claims file, the examiner must determine the current severity of the Veteran’s erectile dysfunction and specify whether the Veteran has internal or external deformity of the penis. In addressing this question, the examiner should specifically discuss the November 2012 VA treatment record indicating a 1-cm cystic mass on the shaft of the penis and indicate whether this is reflective of internal or external penile deformity. See also January and April 2013 VA treatment records. In so addressing, the examiner should be informed that the law defines the term “deformity” as applied to erectile dysfunction as a “penis, deformity, with loss of erectile power,” and “a distortion of the penis, either internal or external.” The examination should include a complete rationale for all opinions expressed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.