Citation Nr: 21063565 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-29 632 DATE: October 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for right ankle arthritis is granted. Entitlement to service connection for left ankle arthritis is granted. Entitlement to service connection for cervical spine arthritis is granted. Entitlement to service connection for tendonitis, left elbow (also claimed as arthritis, various joints) also as due to an undiagnosed illness is denied. Entitlement to service connection for acromioclavicular arthrosis with impingement and rotator cuff tear, left shoulder (also claimed as arthritis, various joints) also as due to an undiagnosed illness is denied. An increased disability rating in excess of 40 percent for mild benign prostatic hypertrophy is denied. FINDINGS OF FACT 1. Tinnitus is attributable to service. 2. Right ankle arthritis is a subsequent manifestation of already service-connected arthritis, and intercurrent causes of this disease have not been identified. 3. Left ankle arthritis is a subsequent manifestation of already service-connected arthritis, and intercurrent causes of this disease have not been identified. 4. Cervical spine arthritis is a subsequent manifestation of already service-connected arthritis, and intercurrent causes of this disease have not been identified. 5. The preponderance of the evidence weighs against finding that the Veteran has an undiagnosed or medically unexplained chronic multi-symptom illness manifest by tendonitis, left elbow (also claimed as arthritis, various joints). The Veteran does not have arthritis of the left elbow and the current left elbow disorder did not manifest in service nor is it otherwise related to service. 6. The preponderance of the evidence weighs against finding that the Veteran has an undiagnosed or medically unexplained chronic multi-symptom illness manifest by acromioclavicular arthrosis with impingement and rotator cuff tear, left shoulder (also claimed as arthritis, various joints). The Veteran does not have arthritis of the left shoulder and the current left shoulder disorder did not manifest in service nor is it otherwise related to service. 7. The Veteran's mild benign prostatic hypertrophy does not require the use of appliance or wearing of absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Osteoarthritis of the right ankle, as a subsequent manifestation of service-connected arthritis of the knees and feet, was incurred during wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303 (b). 3. Osteoarthritis of the left ankle, as a subsequent manifestation of service-connected arthritis of the knees and feet, was incurred during wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303 (b). 4. Osteoarthritis of the cervical spine, as a subsequent manifestation of service-connected arthritis of the knees and feet, was incurred during wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303 (b). 5. The criteria for service connection for tendonitis, left elbow (also claimed as arthritis, various joints) also as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 6. The criteria for service connection for acromioclavicular arthrosis with impingement and rotator cuff tear, left shoulder (also claimed as arthritis, various joints) also as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 7. The criteria for a disability rating in excess of 40 percent for mild benign prostatic hypertrophy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.115a, 4.115b, Diagnostic Codes (DCs) 7527, 7512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to February 1971 and from April 1972 to October 1992 to include in Southwest Asia, with over 11 years of foreign service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concept of service connection claims and rating evaluations; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim; inquired as to the existence of potential outstanding records; and held the record open for 90 days for the submission of additional evidence. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. Additional evidence, including a July 2021 medical opinion from a non-VA doctor was thereafter submitted directly to the Board, with waiver of AOJ consideration. Service Connection Veterans are entitled to compensation from VA 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 a right to compensation for a present disability, 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 initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In addition to the regulations cited above, because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). 1. Entitlement to service connection for tinnitus is granted. The Veteran claims entitlement to service connection for tinnitus from exposure to noise to include being in proximity to flight line, jet engine, backfire and generator noise. He testified that during his 24-year career, he was deployed to Pope Air Force Base multiple times. They would be set up on the flight line and between the generators and everything else, they would test those jet engines 24/7. They were a world-wide mobility unit and multiple high noise scenarios would be simulated for sustained periods. The same exposure occurred at Palmdale, California just prior to the Persian Gulf War, where the unit went for education and the noise was streamed 24/7 for 30 days. He reported that for forty-five days at Pope and then 30 days at Palmdale, California they listened to jet engines partially going with the generators and communication equipment. His ringing started then. Later into his career after he got back from Riyadh, Saudi Arabia after 13 months there, it really started affecting him and has continued. A VA examiner examined the Veteran in November 2015 and found no link between current tinnitus and service. They stated that an opinion could not be provided without resorting to mere speculation since the evidence shows his military occupational specialty had a low possibility of being exposed to excess military noise and his service treatment records (STRs) were silent for any complaints or diagnosis during service. Lastly, it was noted that the evidence showed excess occupational noise exposure for the last 23 years. Dr. W. opined in April 2021 that the current tinnitus was a result of in-service noise exposure. Dr. W. stated the Veteran had no other risk factors. We do note that his military occupational specialty on his DD 214 was Communications Computer Systems Superintendent, 24 years, and that his STRs do not include complaints, treatment, or diagnosis of tinnitus. However, we find that the Veteran's detailed testimony regarding noise exposure during his lengthy service is consistent with the record. It provides a basis for the Board to conclude that the Veteran was indeed exposed to excess military noise. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service noise exposure, reports of tinnitus during service, and reports of a continuity of symptomatology from service. While the Board does note that STRs do not document any relevant complaints or diagnoses, in light of the credible report of in-service noise exposure, the Veteran's competence to identify tinnitus, and his generally consistent reports of onset in service and continuity thereafter, the Board concludes that entitlement to service connection is warranted. In sum, while acknowledging the negative VA medical opinion, as well as the unsupported favorable non-VA opinion, the Board does not find any evidence sufficient to overcome the aforementioned evidence that tinnitus was incurred in service. 2. Entitlement to service connection for right ankle arthritis is granted. 3. Entitlement to service connection for left ankle arthritis is granted. 4. Entitlement to service connection for cervical spine arthritis is granted. A March 2018 VA ankle examination report reflects osteoarthritis in the bilateral knees. The examination report indicates there is X-ray evidence of documented arthritis of the ankles. The Veteran testified that he was told by a treating source that his arthritis in multiple areas to include his feet and knees was a systemic process that would progress to other joints such as his ankles and neck. He also reported this in his NOD. Citing to an October 1992 STR note reflecting treatment for ankle pain and reports of ongoing pain, a non-VA doctor, R.J.A., M.D., opined in June 2021 that the Veteran's bilateral ankle pain is more likely than not a direct result of his service. A March 2018 VA ankle examination report reflects osteoarthritis in the bilateral ankles. The examination report indicates there is X-ray evidence of documented arthritis of the ankles. The November 2013 VA cervical spine examination reflects diagnosis of degenerative disc disease, with degenerative joint disease (arthritis) of the cervical spine being documented in diagnostic imaging. An X-ray dated in July 2009 shows mild C4 anterolisthesis, most consistent with posterior facet degenerative changes. A magnetic resonance imaging (MRI) study dated in August 2011 showed cervical spondylosis. As to arthritis of the bilateral knees and feet, the Veteran is currently service-connected for the total right knee arthroplasty, with degenerative joint knee with small joint effusion (previously codes as DC 5003, now rated as DC 5055), total left knee arthroplasty (previously rated under DC 5003, now rated under DC 5055), and degenerative joint disease, bilateral feet with pes planus and hallux valgus (also claimed as arthritis, various joints) (rated under DCs 5010 for traumatic arthritis and 5276 for pes planus). According to Compensation and Pension (Facts and Questions), degenerative arthritis is a process that can involve many joints. While the DC used by the RO is for a general degenerative arthritic disease process, the knees and feet are the only areas in which arthritis is currently service-connected. See 38 C.F.R. § 4.25 (b) (reflecting that arthritis is a single disease entity but that the disabling conditions are to be separately rated). As indicated above, 38 C.F.R. § 3.303 (b) establishes service connection for subsequent manifestations of a service-connected chronic disease at any later date, however remote, unless clearly attributable to intercurrent causes. Here, the Veteran has osteoarthritis of the knees, a chronic disease under 38 U.S.C. § 1101. The AOJ employed DC 5003 instead of 5010 for the knees. Further, there is no evidence of any intercurrent causes for the right or left ankle, or cervical spine, osteoarthritis, and treatment records generally support the theory that the arthritis condition has been treated as a single disease process. As such, the evidence shows that the Veteran's right and left ankle and cervical spine osteoarthritis is related to the already service connected chronic disease process. The Board accepts that when the AOJ employed diagnostic code 5003, there was an awareness of what this meant. Consequently, service connection for osteoarthritis of the right and left ankle and cervical spine is warranted. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303 (b). 4. Entitlement to service connection for tendonitis, left elbow (also claimed as arthritis, various joints) also as due to an undiagnosed illness is denied. 5. Entitlement to service connection for acromioclavicular arthrosis with impingement and rotator cuff tear, left shoulder (also claimed as arthritis, various joints) also as due to an undiagnosed illness is denied. The Veteran urges that current left elbow and left shoulder problems are related to the rigors of his 24 years of service. He testified that he has arthritis in these two areas and that the pain and limited motion started in service and has progressed. As will be discussed herein, the current diagnosis is not arthritis in these areas but rather left elbow tendonitis and left shoulder acromioclavicular arthrosis. First, the Board notes that, although the Veteran did serve in Southwest Asia, the preponderance of the evidence is against finding that there is undiagnosed illness or medically unexplained multisymptom illness with regard to the left elbow and the left shoulder. The Veteran has argues generally that he has undiagnosed illness. However, the treatment record does not suggest any such condition. He did not testify there was undiagnosed illness or medically unexplained multisymptom illness. Significantly, no such illness was found to be present during a March 2016 VA Gulf War examination or a November 2013 VA Gulf War, elbow and shoulders examination. At that time, the examiner found that the current diagnosed conditions, left elbow tendonitis and left shoulder acromioclavicular arthrosis, were diagnoses with clear and specific etiology and not related to any specific Southwest asia exposure event during the service. Dr. A.'s June 2021 report does not indicate there is was undiagnosed illness or medically unexplained multisymptom illness related to these two claims. Second, the preponderance of the evidence is against finding current left elbow or left shoulder arthritis. We observe that the November 2013 VA elbow and shoulders examination affirmatively stated there is no left elbow or shoulder arthritis, and no subsequent treatment records conflict with this finding. Thus, the presumptions as to chronic disease, to include arthritis, are not for application. 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). There was no medically chronic disease in service with regard to the left elbow or shoulder. Third, the preponderance of the evidence is against finding that the current left elbow tendonitis and/or left shoulder acromioclavicular arthrosis manifested in service or is otherwise related to service. STRs include no complaints or findings related to the left elbow or left shoulder. We note that they do show right elbow tendonitis and shoulder disorder (not arthritis), which are service-connected. The VA examiner in November 2013 reviewed the record and found that the right elbow and right shoulder conditions were related to service as they were noted in service but did not observe a relationship between the left elbow or shoulder conditions and service. Finally, the preponderance of the evidence is against finding that a nexus exists between the current left elbow and shoulder disorders and service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Neither of the conditions observed by the 2013 VA examiner began in service or were aggravated therein nor has either condition been related to service by any competent evidence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.306. Following service, there are no actual treatment records as to these conditions for a few years after service. Moreover, no competent evidence indicates that the current two conditions are related to service. The lack of identification of complaints or findings related to these claims in service, and the lack of any medical opinion indicating any relationship between the actual left elbow or shoulder conditions and service, is highly persuasive evidence against finding current disability is related to service. While the Veteran believes current left elbow and left shoulder conditions are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue of nexus is, again, medically complex. Consequently, the Board gives more probative weight to the competent medical evidence, the 2013 VA medical opinion and the treatment record. There is no credible evidence that the current left elbow or shoulder disorders are otherwise related to service. The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127(1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 7. An increased disability rating in excess of 40 percent for mild benign prostatic hypertrophy is denied Importantly, we note that the issue on appeal as clarified at the hearing, unequivocally documented in the hearing transcript, is the disability rating assigned for this disability. There was no argument at the hearing that the disability had worsened since the last VA examination. The Veteran is currently rated under DCs 7512 and 7527, and as such the Veteran's condition should be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, DC 7527. As an initial matter, the Board notes that the medical evidence of record is absent for any treatment for urinary tract infection. Rather, the evidence demonstrates that the Veteran's disability manifests primarily as a voiding dysfunction. Also, the record is uncontroverted with regard to the fact that there is no associated renal dysfunction. Accordingly, the Board will address the Veteran's symptomatology in accordance with the voiding dysfunction criteria. Voiding dysfunction may be rated based on urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. He already exceeds the highest rating for obstructed voiding (30 percent). With respect to urine leakage, a 60 percent rating is warranted when there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. The current 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. For a rating based on urinary frequency, a 40 percent rating is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. The Veteran filed this claim in June 2015, seeking a compensable rating. The November 2015 rating decision increased the rating to 40 percent from the date of claim based on the fact that his prostate condition requires the wearing of absorbent materials which must be changed two to four times per day. At his April 2021 hearing, he testified that he had prostate surgery in 2012, and this is consistent with the treatment record showing he underwent prostatectomy in May 2012. He changes absorbent materials about three or four times a day. He has hourly daytime voiding intervals and wakes multiple times per night to void. Dr. A. noted in June 2021 that the Veteran's condition has remained symptomatic. A separate claim for fecal leakage was denied in an August 2021 rating decision. Service-connection is also in effect for erectile dysfunction (ED). We note that an April 2021 male reproductive examination does not reflect that there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. VA examination in August 2015 reflects, in pertinent part, that the Veteran has BPH (benign prostate hypertrophy) with associated ED. He reported he has had urinary urgency and frequency, as well as dribbling for years. He reported he wears pads 5 days a week and stays away from light pants because of leakage. He had not had an orchiectomy nor was there renal dysfunction due to this condition. The etiology of the voiding dysfunction was the BPH with Suprapubic prostatectomy in 2012. Voiding dysfunction causes urine leakage and requires absorbent material which must be changed not more than 2 to 4 times per day and he does not require the use of an appliance. Daytime voiding interval was between 2 and 3 hours and nighttime awakening to void was reported as 2 times. Signs or symptoms of obstructed voiding included hesitancy but not marked hesitancy. There was no history of chronic epididymitis, epididymo-orchitis or prostatitis. There was no benign or malignant neoplasm or metastases related to BPH or ED. There was no functional impact. He does not take medication for BPH since the 2012 surgery. The remainder of the VA and private treatment records are consistent with the 2015 VA examination findings and testimony as related to this claim. Neither the medical evidence of record, nor the Veteran's statements in support of his claim indicate that he requires the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. 38 C.F.R. § 4.115a, 4.115b, DCs 7527, 7512. Parenthetically, no impairment of renal function has been indicated in the record. Therefore, a higher, 60 percent rating is not warranted for prostatitis. In making this determination, the Board has reviewed all the evidence of record, both medical and lay evidence, regarding the level of severity of the Veteran's condition. The preponderance of the evidence is against a higher rating and a staged rating is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, Counsel 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.