Citation Nr: 21067236 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-34 962A DATE: November 3, 2021 ORDER Entitlement to separate ratings for service-connected diabetes mellitus, type II, and erectile dysfunction, to include a rating in excess of 20 percent disabling for erectile dysfunction is dismissed. Entitlement to service connection for herniated nucleus pulpous with spinal stenosis (claimed as low back condition) is denied. REMANDED Entitlement to a rating in excess of 10 percent disabling for service-connected bilateral hearing loss is remanded. Entitlement to a rating in excess of 20 percent disabling for service-connected diabetes mellitus type II, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. During the March 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to separate ratings for service-connected diabetes mellitus, type II, and erectile dysfunction, to include a rating in excess of 20 percent disabling for erectile dysfunction; there are no further allegations or questions or factual or legal error remaining for appellate consideration in those matters. 2. Herniated nucleus pulpous with spinal stenosis, is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal seeking entitlement separate ratings for service-connected diabetes mellitus, type II, and erectile dysfunction, to include a rating in excess of 20 percent disabling for erectile dysfunction have been met; the Board has no further jurisdiction in these matters. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for herniated nucleus pulpous with spinal stenosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1967 to May 1969. In March 2021 the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. Dismissed Claims Entitlement to separate ratings for service-connected diabetes mellitus, type II, and erectile dysfunction, to include a rating in excess of 20 percent disabling for erectile dysfunction is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204 (b)(3). The United States Court of Appeals for Veterans Claims (Court) recently held that a verbal withdrawal of an issue at a Board hearing must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal decision must include findings as to all three elements. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Over the course of the March 2021 hearing (including in prehearing discussions), the undersigned, the Veteran, and his representative discussed the claims seeking entitlement to separate ratings for service-connected diabetes mellitus, type II, and erectile dysfunction, to include a rating in excess of 20 percent disabling for erectile dysfunction and the consequences of withdrawing those claims. Thereafter, the Veteran explicitly, unambiguously, and demonstrating a full understanding of the consequences, affirmed his intent to withdraw those claims. Therefore, there remains no further allegations or questions of factual or legal error remaining for appellate consideration and the Board has no further jurisdiction in the matters. Consequently, they are dismissed. Service Connection Claim Entitlement to service connection for herniated nucleus pulpous with spinal stenosis (claimed as low back condition) is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has a back disability, specifically herniated nucleus pulpous with spinal stenosis, which he contends is the result of his active service. Specifically, he contends that such was either caused by or began during his service. The Veteran's service treatment records reflect the Veteran's complaints of back pain and note treatment for back strain. Post-service treatment records reflect that the Veteran was diagnosed with a herniated disc and spinal stenosis. In June 2015 the Veteran underwent a Back Conditions examination with an accompanying disability benefits questionnaire (DBQ). While the Veteran reported that he began to experience low back pain in service as a result of lifting, the examiner found that the Veteran did not have a thoracolumbar spine condition. However, the examiner did find that the Veteran had spinal stenosis which he noted was a degenerative condition. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that the Veteran had spinal stenosis which is a degenerative condition and likely not from service. In August 2015 an addendum opinion was obtained to clarify some of the findings in the June 2015 examination and opinion. The examiner noted that the Veteran had lumbar strain documented in service, but that imaging taken at the time did not show any signs of stenosis or listhesis. The examiner explained that by definition a lumbar strain is a stretching injury to the ligaments, tendons, and or muscles of the low back. This injury was consistent with the Veteran's symptoms documented in his service records of low back pain. Spinal stenosis however presents with much different symptoms of neurogenic claudication. The examiner noted that the Veteran never had such symptoms while enlisted and furthermore his records note "no sequelae" and "no limitations" from his previous back strain. Spinal stenosis is caused by either instability or degenerative changes causing compression which is different than and unrelated to lumbar strains. As the June 2015 and addendum August 2015 opinions had clear conclusions and supporting data, as well as reasoned medical explanations connecting the two, the Board finds them probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, there are no contrary opinions of record. Throughout the appeal, the Veteran has submitted statements in support of his claim. The Veteran has alleged that he suffers from low back pain due to his herniated nucleus pulpous with spinal stenosis as a result of his service. The Board finds that service connection for herniated nucleus pulpous with spinal stenosis, is not warranted on either a presumptive or direct basis. The Board notes that the medical evidence is not in dispute as to whether the Veteran currently has a low back disability, specifically herniated nucleus pulpous with spinal stenosis. There is ample evidence in the Veteran's post-service treatment records to support such diagnoses. Furthermore, the June and August 2015 VA examiner confirmed the diagnoses. However, the preponderance of the evidence is against service connection for herniated nucleus pulpous with spinal stenosis, on a presumptive basis. Most notably, such is not listed as chronic diseases under 38 C.F.R. § 3.309 (a). Furthermore, there is no evidence of such within one year after military service. As previously noted, there is no diagnosis for herniated nucleus pulpous with spinal stenosis or treatment for such during the Veteran's service or for several years after his discharge. The earliest evidence of a definitive assessment of a herniated disc was in 2000 and spinal stenosis was in 1987. The Board also finds that the preponderance of the evidence is against service connection for herniated nucleus pulpous with spinal stenosis, on a direct basis. First, while there are complaints of back pain in service, such was due to back strain and not herniated nucleus pulpous with spinal stenosis. Furthermore, the August 2015 examiner noted that there was "no sequelae" as a result of the Veteran's in service lumbar strain. And while the Veteran has alleged that he experienced back pain in service, the VA examiners found no link between the Veteran's current disability and his service, to include his back pain and strain therein. Second, the earliest indication of herniated nucleus pulpous with spinal stenosis is post-service in 2000 and 1987. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no competent, probative medical evidence in the record that links any current herniated nucleus pulpous with spinal stenosis, to an incident of the Veteran's active military service. As previously noted, the Board has found the June and August 2015 opinions probative, and the VA examiner specifically found that the Veteran's current disability was not related to the Veteran's service. Consequently, there is no reasonable possibility of substantiating his herniated nucleus pulpous with spinal stenosis claim on a direct basis. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, may be credible regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Here, however, any statements as to herniated nucleus pulpous with spinal stenosis continuing immediately after service are not found to be persuasive in light of the persuasive medical evidence of record to the contrary. For these reasons, continuity of symptomatology has not been established, either through the medical evidence or through the Veteran's statements. Stated differently, herniated nucleus pulpous with spinal stenosis was not demonstrated during service, at separation, or within one year of separation. The findings of record are consistent with diagnosis of herniated nucleus pulpous with spinal stenosis but inconsistent with any possible allegation of continuity of symptomatology. Furthermore, there is no competent evidence linking the remote onset of herniated nucleus pulpous with spinal stenosis to service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for herniated nucleus pulpous with spinal stenosis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Entitlement to ratings in excess of 10 percent disabling for service-connected bilateral hearing loss and in excess of 20 percent disabling for service-connected diabetes mellitus type II, is remanded. Relevant to the Veteran's claims for increased ratings for service-connected bilateral hearing loss and diabetes mellitus type II, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claims for increased ratings for his service-connected bilateral hearing loss and diabetes mellitus type II must be remanded in order to afford him contemporaneous VA examinations in order to assess the current nature and severity of his service-connected disabilities. In this regard, the record reflects that the Veteran was most recently afforded a VA Hearing Loss and Tinnitus examination in January 2012 and a VA General Medical examination in August 2011. Since the examinations, the Veteran has noted an increase in the severity of his symptoms and alleges that higher ratings are warranted. In light of the allegations of worsening symptoms, the degenerative nature of the Veteran's conditions, and the amount of time which has passed since the Veteran's prior examinations, the Board finds that a remand is required in order to afford the Veteran contemporaneous VA examinations so as to determine his current level of impairment with regard to his service-connected bilateral hearing loss and diabetes mellitus type II. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Entitlement to a TDIU due to service-connected disabilities is remanded. The Board finds that the matter of entitlement to a TDIU is inextricably intertwined with the claims for increased ratings being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, final adjudication of the claim for TDIU must be deferred at this time. Due to the amount of time which will pass on remand updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. 3. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected diabetes mellitus, type II. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.