Citation Nr: 21065757 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-08 400 DATE: October 27, 2021 ORDER Entitlement to service connection for a left shoulder disorder is granted. Entitlement to service connection for a heart disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to a heart disorder, is denied. FINDINGS OF FACT 1. The Veteran's left shoulder disorder is etiologically related to his active-duty service. 2. The Veteran's heart symptoms are not related to service or to toxic herbicide exposure. 3. The Veteran's bilateral hearing loss was not shown in service or for many years thereafter and is otherwise etiologically related to active-duty service. 4. The Veteran's erectile dysfunction is not related to active duty or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a heart disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to a heart disorder, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. These matters return to the Board of Veterans' Appeals (Board) following the issuance of a September 2020 Court of Appeals for Veterans Claims (CAVC) joint motion for remand and a subsequent Board remand decision issued in February 2021 which directed the Regional Office (RO) to undertake additional development. The February 2021 Board remand directed the RO to attempt to obtain and associate records from the Veteran's time in service and more recent medical records. The RO complied with this request and those records have been associated with the Veteran's case file. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). 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); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to toxic herbicides during such service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Certain chronic diseases, including some heart diseases, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a left shoulder disorder The Veteran contends that he has a left shoulder disorder that is attributable to service, specifically, due to a helicopter crash in service. After review of the evidence, the Board finds that service connection is warranted. Review of the Veteran's service treatment records reveals that he was involved in a helicopter crash in March 1967. However, there are no noted shoulder injuries documented in his service treatment records following the crash. Additionally, there are similarly no noted shoulder symptoms, treatment, or diagnoses in the remainder of his service records, including on his April 1968 separation examination. The first indication of treatment for a left shoulder disorder is in May 2012, approximately 44 years following his separation from service. Thus, there is no evidence of a continuity of symptoms. The Veteran was provided with a VA examination in July 2021 to evaluate the nature and etiology of his claimed right and left shoulder disorders. At the examination, the Veteran reported that he is not able to lift his shoulders above their height, has difficulty getting dressed, cannot work above his head, and was told by medical personnel that he should not lift more than 5 pounds. He further indicated that his pain is treated with physical therapy and steroid injections. The examiner confirmed three diagnoses of shoulder disorder for the right side but none for the left. However, upon examination, the Veteran was noted to have abnormal range of motion in both shoulders to a similar detriment. On the left, pain was noted with flexion, abduction, and internal and external rotation. Additionally, pain was noted on the left shoulder with weight and non-weight bearing, active motion, passive motion, and on rest. The examiner opined that the Veteran's right shoulder disorder was likely due to the in-service helicopter crash. The examiner noted further that while they believe the left shoulder was injured during the crash that they could not opine that it was related to the crash because there were no documented injuries to the left shoulder. It is not clear to the Board why the examiner differentiated between the left and right shoulders in this way as there are no documented injuries to either in the Veteran's service treatment records, however, there are diagnosed disorders of the right shoulder but not of the left. Nevertheless, even though a current diagnosis has not been rendered for the left shoulder, the Board finds that the Veteran has a current left shoulder disability as his pain has reached the level of a functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1361-62 (2018). As to nexus, the Board observes that the Veteran is competent to report observable symptoms, such as chronic pain, and his statements are credible in that regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vat. App. 465 (1994). Moreover, it would be difficult to make any determination regarding which portions of the body were or were not injured in the way in which the Veteran was due to the helicopter crash. Based on the foregoing, the Board finds that a nexus has been established between the Veteran's in-service helicopter crash and his current left shoulder disability. In summation, resolving all doubt in the Veteran's favor, the Board finds that the Veteran has a current left shoulder injury that is attributable to service. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Accordingly, the claim is granted. 2. Entitlement to service connection for a heart disorder 3. Entitlement to service connection for bilateral hearing loss 4. Entitlement to service connection for erectile dysfunction, to include as secondary to a heart disorder The Veteran is seeking service connection for bilateral hearing loss, a heart disorder, and erectile dysfunction. Specifically, he has alleged that he was exposed to hazardous noise as an infantryman while stationed in Vietnam. He has only generally alleged that his claimed heart disorder and claimed erectile dysfunction are related to service, however, it has been insinuated that his erectile dysfunction may be secondarily caused via a heart disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury event, or disease. As a preliminary matter, the Board concludes that the Veteran's heart disorder is best characterized as symptoms related to an irregular heartbeat. While disorders such as ischemic heart disease are presumptively related to toxic herbicide exposure, heart arrythmias are not included as a presumptive disorder. Therefore service connection is not warranted on a presumptive basis. Next, while the Board finds that the Veteran has a current diagnosis of bilateral hearing loss, heart disorder, and erectile dysfunction, the preponderance of the evidence weighs against finding that any are related to service. As an initial matter, the Veteran's service treatment records do not indicate the presence of any of these disorders while on active duty. In this regard, the Veteran is a combat veteran, and his statements are presumed factual. 38 U.S.C. § 1152(b). As such, the Board will presume that he was exposed to significant acoustic trauma in service. However, it is still important to note that his April 1968 separation examination and report of medical history, are silent for any signs, symptoms, or treatment of such disorders. Moreover, the Veteran has not truly asserted that his erectile dysfunction or his heart problems were present in service. Next, the post-service evidence also does not indicate that the Veteran has experienced continuous symptoms related to these disorders for many years after service. Indeed, the objective medical evidence does not demonstrate any symptoms or treatment for bilateral hearing loss until June 2012, and his heart disorder was not manifest until after that. Finally, there are no notations in the Veteran's medical records for any diagnosis or treatment of erectile dysfunction. Moreover, the Veteran has not asserted continuous heart symptoms or erectile dysfunction since service. Therefore, service connection is not warranted for any of these disorders based on continuity of symptoms. As part of this claim, the Board recognizes the statements from the Veteran regarding his history of these disorders since service. In this regard, while the Veteran is competent to report having experienced symptoms such as hearing loss since service, he is not competent to provide a diagnosis in this case as the issue is medically complex and requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Again, while the Board clearly believes that there was acoustic trauma in service, there is insufficient basis to grant service connection for this disorder based on the Veteran's statements alone. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran's claims. Further, the Veteran's service and medical records contradict his assertions that his symptoms have persisted since service. For example, the Veteran's history of symptoms is inconsistent with his April 1968 separation examination, as well as his November 2010 VA treatment records. Additionally, the Board notes that the Veteran filed a claim for VA benefits prior to filing his claims of service connection for back, hip, and shoulder disorders, but did not mention hearing loss at that time. The fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to some of the disorders he now claims, weighs heavily against his credibility. Next, service connection may be granted when the evidence establishes a medical nexus between active-duty service and a current diagnosis. However, there is insufficient evidence in the medical records to demonstrate a nexus between his active service and his bilateral hearing loss, claimed heart disorder, or claimed erectile dysfunction. Concerning the Veteran's claimed heart disorder and erectile dysfunction, there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and these claimed disorders. Specifically, the Veteran has not asserted that these symptoms were present in service. Further, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his claimed heart disorder and erectile dysfunction. Additionally, the Board also finds that a VA examination is not warranted for either of these disorders. Specifically, as there are no symptoms in service, by the Veteran's own admission, any opinion provided by an examiner would be based purely on speculation, and therefore of minimal probative value. Turning to the Veteran's claim for service connection for bilateral hearing loss, the Board notes that he was provided with VA medical examinations in April 2011 and July 2021. The April 2011 examination was determined to be inadequate in the September 2020 CAVC joint motion for remand due to a faulty rationale. At the July 2021 examination, the examiner endorsed hearing loss in both ears. The Veteran reported that his hearing loss makes it really hard to understand people. The examiner indicated that they performed a detailed review of the Veteran's medical records prior to their in-person examination of the Veteran. The examiner opined that the Veteran's hearing loss was less likely than not related to his active-duty service, including any hazardous noise exposure that he experienced as an infantryman. The examiner noted the Veteran's assertions that his hearing loss began in and/or due to service, including any hazardous noise exposure while performing his duties as an infantryman. In support of this opinion, the examiner noted the Veteran's entrance and separation examinations which showed no tonal threshold shift or change in hearing sensitivity. The examiner further elaborated that research and medical literature have found that while hazardous noise exposure can result in hearing loss, it only does so in an immediate manner, it does not cause delayed hearing loss. The examiner concluded that due to the large gap in time between the Veteran's service and when his hearing loss presented, there is no evidence to support a nexus between it and active-duty service. The Board finds that, given the examiner's thorough review of the Veteran's medical history, and the consideration given to the Veteran's statements in the examiner's opinion, this examination to be adequate for the purposes of adjudication. As mentioned above, the Board is willing to accept the Veteran's assertions that he was exposed to acoustic trauma during combat. Indeed, the Board takes notice of the fact that soldiers during combat are exposed to noises such as gunfire, artillery, tanks, etc. However, given the lack of a permanent threshold shift in service, and given that the disorder did not persist in the years since active duty, the combat presumption of Section 1154(b) cannot be used to presume that the Veteran's hearing loss has a medical nexus to service. As such, the Board cannot find that service connection for bilateral hearing loss, a heart disorder, or erectile dysfunction is warranted on a direct basis. Indeed, there is no objective medical evidence linking the disorders to his active-duty service. Further, the Board notes that the Veteran has provided insufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and the claimed disorders. Moreover, the Board notes that the Veteran is not service connected for a heart disorder, as such, secondary service connection for erectile dysfunction based upon a heart disorder cannot be considered. 38 C.F.R. § 3.310. The Board has also considered the statements made by the Veteran relating his disorders to his active-duty service, including about his service as in infantryman. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his claimed disorders. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his bilateral hearing loss is related to his active-duty service, he is a lay person without appropriate medical training and expertise to provide medical diagnoses and/or etiological opinions. Therefore, his claims seeking service connection for bilateral hearing loss, a heart disorder, and erectile dysfunction are denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor