Citation Nr: 21064157 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-39 928A DATE: October 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for residuals of calcaneus stress fracture, left foot, is denied. (The issue of entitlement to an initial rating higher than 20 percent for residuals of clavicle fracture, right (dominant) shoulder, will be the subject of a separate Board decision.) REMANDED Entitlement to service connection for erectile dysfunction (ED), including as due to service-connected disability, is remanded. Entitlement to service connection for hypogeusia (loss of smell), now claimed as loss of olfaction and taste, is remanded. Entitlement to service connection for lumbar L-5 spondylolysis is remanded. Entitlement to service connection for sciatic radicular pain, right lower extremity (RLE), is remanded. FINDINGS OF FACT 1. The evidence of record shows that the Veteran does not have a hearing loss in either ear that meets the VA definition of a disability. 2. The weight of the evidence of record is against a finding of a prior left foot fracture. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for entitlement to service connection for residuals of calcaneus stress fracture, left foot, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2007 to June 2011. His service included two tours in Iraq, and his awards and decorations include the Combat Action Ribbon. Upon initial review of this case the Board determined that new and material evidence (NME) was received to reopen the claims noted on the Title Page and remanded them for additional development. See 01/16/2020 BVA Decision. As discussed further in the decision below, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection General Legal Requirements 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); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. As concerns all of the issues discussed below, as noted in the 2020 Board decision, the Board determined that a medical report by the Veteran's private chiropractor, Paul J. Yocom, D.C., constituted NME to reopen the previously denied claims. The Board notes that for the purpose of determining if NME has been received, all new evidence is presumed credible. That means that Dr. Yocom's opinions were not tested for weight or reliability. Now that the Veteran's claims are being addressed again on the merits, Dr. Yocom's opinions, and all other evidence now before the Board, must be tested for weight and credibility. 1. Entitlement to service connection for bilateral hearing loss is denied. Requirements for Hearing Loss In addition to the general requirements for service connection set forth above, certain organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA deems sensorineural hearing loss (SNHL) as among the organic diseases of the nervous system that are covered. See VA Under Secretary for Health Memorandum (October 1995); see also Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Discussion In 2013, the Veteran's hearing did not manifest with hearing loss that meets VA disability requirements. See 08/10/2013 VA Examination, 1st Entry, P. 5. Hence, the claim was denied. See 09/24/2013 Rating Decision. Dr. Y. noted how the Veteran heard in a room with an air conditioner and computer running, and soft music playing, he opined that the Veteran had hearing loss and that it should be confirmed by audiometry. See 04/11/2016 Medical Treatment-Non-Government Facility, P. 3. The AOJ arranged an examination as directed in the Board remand. The examination report (01/31/2020 C&P Exam, 1st Entry) reflects that the Veteran's hearing manifested as follows: Right ear: 500 Hz, 20 db; 1000 Hz, 15 db; 2000 Hz 15 db; 3000 Hz, 15 db; 4000 Hz, 20 db; Left ear: 500 Hz, 20 db; 1000 Hz, 10 db; 2000 Hz 15 db; 3000 Hz, 15 db; 4000 Hz, 20 db. Speech recognition in each ear was 100 percent. The objective findings on clinical examination show that the Veteran's hearing loss continues to manifest at a rate that does not meet the VA criteria for a disability. The results determined by audiometry clearly outweigh Dr. Y.'s finding and opinion. Hence, the Board is constrained to deny the claim. 38 C.F.R. §§ 3.385, 3.303. 2. Entitlement to service connection for residuals of calcaneus stress fracture, left foot, is denied. The July 2013 VA examination report (07/25/2013 VA Examination, 2nd Entry, P. 85-89) reflects that the examiner noted a 2011 left calcaneus fracture that was treated conservatively and that the Veteran denied any current symptoms. There were no positive findings on physical examination. No x-rays were taken. Dr. Y.'s report notes that that the Veteran sustained an injury to the medial aspect of the left heel while on a march on rough terrain, for which he was treated in the field by a medic. He noted further that there was swelling of the left heal and pain on all walking and weight bearing. Range of motion of the left foot was within normal limits (WNL) but all motion was painful and there was pain to digital examination. Dr. Y. diagnosed a post-calcaneus fracture with residual pain, which he opined was causally connected to the Veteran's active service. See 04/11/2016 Non-Government, P. 3. The 2020 VA examination report (03/26/2020 C&P Exam, 9th Entry) reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran's report of an injury while deployed, which was not diagnosed until 2012. The Veteran reported current symptoms of pain after walking one mile and when wearing certain shoes. Id. P. 4. The examiner noted that there was no left foot pain on clinical examination, and that left foot x-rays did not reveal arthritis or any other significant findings. Hence, the examiner opined that there was no objective evidence on which to diagnose a left foot examination. Id. P. 9, 12, 13. The examiner opined that it was not at least as likely as not that a left foot condition is causally connected to active service, as there was no evidence of left foot symptoms in the service treatment records (STRs) or current evidence of a left foot disorder. See 03/26/2020 C&P Exam, 7th Entry. The Board must assess the credibility and probative value of evidence and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Further, the Board is not required to accord more weight to the opinion of a treating physician or other medical professional, see White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001), as the Court of Appeals for Veterans Claims has explicitly "rejected the broad application of the 'treating physician rule' that gives the opinions of treating physicians greater weight in evaluating veterans' claims." Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (citing Harder v. Brown, 5 Vet. App. 183, 188 (1993)); see Guerrier v. Brown, 7 Vet. App. 467 (1993). Hence, while the Board is not free to ignore the opinion of a treating provider, neither is it required to accord it substantial weight. See generally Guerrieri, 4 Vet. App. at 471-73; Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Board finds that the VA examiner's opinion garners the greater weight. First, the Board notes that while Dr. Y. has medical training, he is not a physician. See Black v. Brown, 10 Vet. App. 279 (1997) (a medical professional's opinion may garner less weight if a medical issue requires special knowledge). Second, Dr. Y.'s report does not note what records, if any, that he reviewed. His report references what the Veteran reported to him. A medical provider may properly rely on the lay history that a patient reports, but any resulting diagnosis or opinion on etiology is no better than the history on which it is based. By contrast, the VA examiner not only took and noted the Veteran's reported history, but he also conducted a review of the claims file. The Board notes that Dr. Y. indicated that he in fact examined the Veteran's foot and noted pain on motion and to digital pressure. The Board acknowledges that but also that the most recent clinical examination did not reveal any positive findings. As concerns the VA fee-basis examiner's opinion, the Board notes that part of his rationale was the absence of any evidence in the STRs. The Board acknowledges the fact that the Veteran is fully competent to report his history and symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the absence of contemporaneous medical documentation, alone, is not an adequate basis for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Nonetheless, the VA examiner did not rely solely on the absence of medical documentation but also objective clinical examination and x-ray results. The examiner noted that x-rays did not reveal any evidence of a prior fracture or other pathology. See 03/26/2020 C&P Exam, 5th Entry, P. 3. Dr. Y.'s findings and opinions are an outlier, as the 2013 and the 2020 VA examinations did not reveal any positive findings. Based on all of the above, the Board finds that the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for ED, including as due to service-connected disability, is remanded. The 2013 VA examination report reflects that the examiner opined that the Veteran's report of episodic occasions of ED did not meet the diagnostic criteria for a diagnosis of ED (failure 75 percent of the time), and that the Veteran's intermittent issues were consistent with a psychologic origin. See 07/25/2013 VA Examination, 2nd Entry, P. 27-32. In his application to reopen the claim, the Veteran's claimed basis was as due to the claimed L5 disorder, and Dr. Y. opined as much. The 2020 VA examination report reflects that ED was diagnosed, but the examiner opined that the etiology is unknown, and that it is not due to the claimed L5 disorder, as the L5 nerve does not impact erections. See 03/26/2020 C&P Exam, 7th Entry. Nonetheless, the Board notes the 2013 notation of a potential psychological connection and the fact that service connection is in effect for PTSD for which the Veteran is prescribed medication. Hence, additional medical assessment is needed. 2. Entitlement to service connection for hypogeusia (loss of smell), now claimed as loss of olfaction and taste, are remanded. The Veteran asserts that this claim is based on his exposure to environmental hazards during his deployment to Southwest Asia. Further, Dr. Y. based his positive nexus opinion on the Veteran's reported history of exposure to environmental hazards, which Dr. Y. opined damaged the Veteran's olfactory function. The VA examiner did not address the applicability, if any, of the Veteran's service in Southwest Asia. 3. Entitlement to service connection for lumbar L-5 spondylolysis is remanded. The initial VA examination report of 2013 reflects that a fee-basis orthopedic surgeon opined that the Veteran's lumbar spine x-ray showed a vertebral fracture in addition to L5 spondylolysis. See 07/25/2013 VA Examination, 2nd Entry, P. 76-85. Upon a second review of the claims file, a VA orthopedic surgeon opined that it was erroneous to interpret the L5 spondylolysis as a fracture. Instead, the VA orthopedist opined that the Veteran has a pre-existing spondylolysis of the L5 vertebra without any evidence of spondylolisthesis. The orthopedist opined further than the condition is developmental in origin, not traumatic. See 09/16/2013 VA Examination, 1st Entry, P. 4. The September 2013 VA opinion clearly raised the specter that the L5 condition existed prior to the Veteran's entry into active service, but it was noted on his 2007 examination for enlistment. Hence, in the absence of clear and unmistakable evidence to the contrary, his spine is deemed to have been in sound condition. The VA orthopedist opined under at least as likely as not standard. Further, developmental conditions are not deemed to be the subject of service connection. 38 C.F.R. § 3.303(c). Thus, not only must the Veteran's L5 condition be assessed under the correct legal standard but also for a physician to determine if the L5 spondylolysis is a static condition or one which can change. See, e.g., VAOPGCPREC 82-90 (July 1990). 4. Entitlement to service connection for sciatic radicular pain, RLE, is remanded. This issue is intertwined with the L5 spondylolysis claim. The matters are REMANDED for the following action: 1. The AOJ shall ensure that all relevant treatment records generated since the last SSOC are added to the claims file. 2. After the above is complete, send the claims file to an appropriate mental health clinician. Ask the clinician to opine on whether it is at least as likely as not that the Veteran's ED is due to service-connected PTSD or medications prescribed to treat it. If the answer to the above query is, no, then is it at least as likely as not that the service-connected PTSD aggravates or worsens the ED? Inform the examiner that any aggravation or worsening of the ED need not have been or be chronic or permanent to satisfy the standard of secondary service connection. Instead, any impairment in earning capacity due to temporary flare-ups of the ED caused by the PTSD disability or medication to treat it can satisfy the criteria. See Ward v. Wilkie, 31 Vet. App. 233 (2019). 3. Send the claims file to the clinician who conducted the March 2020 examination and rendered the negative nexus opinion on the Veteran's claimed loss of taste and smell or another equally qualified examiner. Ask the clinician to provide an addendum report wherein the examiner opines whether it is at least as likely as not that the Veteran's partial loss of smell is due to the environmental hazards to which he was exposed while serving in SWA. The clinician must provide a full explanation for all opinions provided. A full explanation must include the opinion of Dr. Y., whether the VA clinician agrees or disagrees, and the reasons for any agreement or disagreement. 4. Send the claims file to the clinician who conducted the March 2020 low back examination or an equally qualified physician. Inform the clinician that the Veteran's spine is deemed to have been in sound condition at the time he entered active service unless clear and unmistakable evidence (evidence that it is undebatable) shows that the L5 spondylolysis preexisted his active service. Hence, the clinician is asked to address the following: A) Did the Veteran's L5 spondylolysis clearly and unmistakably exist prior to his entry into active service? If the answer to the above is, yes, then is it a static developmental condition, or is it one that can increase in severity? If the answer is that it is a statis condition, please provide a full rationale and explanation to support the opinion, and the analysis may end there. B) If the clinician opines that the Veteran's L5 spondylolysis is a condition that can increase in severity, then has the Veteran's L5 condition increased in severity and, if so, is any increase in severity clearly and unmistakably due to the natural progression of the L5 spondylolysis? C) If the clinician opines that there is not clear and unmistakable evidence that the L5 spondylolysis existed prior to Veteran's entry into active service, then is it at least as likely as not that the currently diagnosed L5 spondylolysis is causally connected to active service? Inform the clinician that the Veteran's lay report of his history and symptoms must be considered. Inform the clinician further that the Board has not made a ruling on the accuracy, reliability, and credibility of the Veteran's report that he was injured when he fell from a roof 10 feet to the ground while under fire. Inform the examiner also that a negative nexus opinion may not be based solely on the absence of contemporaneous medical documentation. If the absence of documented treatment records is relevant to the nexus opinion, then that relevance must be explained. The clinician must provide a full explanation for all opinions provided. A full explanation must include the opinion of Dr. Y., whether the VA clinician agrees or disagrees, and the reasons for any agreement or disagreement. 5. After all of the above is complete, readjudicate the RLE radiculopathy claim. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.