Citation Nr: 21072267 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-53 636A DATE: December 2, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for prostatitis is remanded. Entitlement to service connection for erectile dysfunction (ED), as secondary to prostatitis, is remanded. Entitlement to service connection for the residuals of tuberculosis (TB) is remanded. Entitlement to service connection for lung nodules/polyps is remanded. Entitlement to service connection for the residuals of an in-service left ankle stress fracture is remanded. Entitlement to service connection for left ankle arthritis is remanded. Entitlement to service connection for "chronic pain all over" is remanded. REASONS FOR REMAND The Veteran had active service from June 1979 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In his November 2016 VA Form 9, the Veteran requested a hearing for this appeal. In October 2021, the Veteran withdrew his hearing request. Remand is warranted for all issues. Left Ear Hearing Loss The Veteran claimed service connection for "hearing loss left ear" in December 2011. On May 9, 2013, an audiologist examined him for this claim. The audiologist diagnosed the Veteran with sensorineural hearing loss in his right ear and both conductive hearing loss and mixed hearing loss in his left ear. When asked to opine on etiology, he stated that he could not without resorting to speculation, noting: Veteran did not exhibit significant threshold shifts in service; however, he does report his ear popping while on helicopter support operation and states that his hearing in the left ear has fluctuated and been problematic, since. Tympanometry today is abnormal in the left ear. Given the conductive elements of hearing loss present, I must defer medical opinion to an ENT physician. The audiologist also diagnosed the Veteran with tinnitus. When asked to opine on etiology, he stated: Veteran has diagnosis of clinical hearing loss and his or her tinnitus is at least as likely as not (50% probability or greater) symptom associated with the hearing loss as tinnitus is known to be symptom associated with hearing loss. On May 23, 2013, a "Chief of ENT" examined the Veteran. To the question of whether the Veteran then had, or ever had, an ear or peripheral vestibular condition, the ENT reported two diagnoses 1) "mixed hearing loss in [the] left ear of mild-to-moderate-to severe degree," and "Eustachian tube dysfunction in left ear." Both were diagnosed on June 10, 2002. The ENT also noted 06/10/2002 audiogram in the claims file is normal for the right ear. The left ear has few frequencies with 5 dB conductive components and 10 coinductive component for the 250 Hz threshold determination. The overall profile was minimal elevation of low-to-mid frequency thresholds (with these dB conductive components and one that was 10 dB) and mild-to-moderate sensorineural loss for the higher frequencies. Right tympanogram was normal, type A, and left was slightly abnormal, type. Today's C&P examination for Hearing Loss & Tinnitus now has minimal sensorineural losses in the low and high frequencies, but not much. The left profile is now significantly worse that what was previously obtained in 2002. A mixed loss of moderate-to-severe degree now exists over all frequencies, although the 250 and 1000 Hz bone thresholds remain normal for this one ear. The testing Audiologist documents in the C&P report that seal could not be obtained for tympanometry. The ENT further noted Service medical record includes timely discharge Physical Examination with audiometric thresholds. Those for the left ear were very slightly higher than for the right ear, but still remained normal at 15 dB or better. I find no ear condition that can connect military service including noise exposure with the subsequent gradual development of what is now moderate degree of left hearing loss of mixed nature. Differential diagnosis for the present left hearing loss would include partial ossicular discontinuity probably with erosion and some remaining fibrous tissue connection upper ossicular chain fixation and otosclerosis (less likely in this case because otosclerosis is fairly uncommon in Black populations). There are other unusual conditions that could account for it too. A CT scan might help, but a final determination would likely require surgical exploration. Again, I can think of nothing to connect this individual active military service experience with this present left hearing loss. On the other hand, although he does not appear to be making claim for tinnitus, I believe that it would be as likely as not for military noise exposure to account for his currently intermittent tinnitus. The AOJ, relying on the ENT opinion, found the Veteran's tinnitus was "directly related to military service" and service connected it. Given the ENT's statement regarding the possibility that a CT scan may provide more information upon which an examiner could rely to determine etiology of the left ear hearing loss, the Board will order a CT scan. Additionally, and notwithstanding the AOJ's reliance on the ENT's etiology opinion for tinnitus, the Board notes that the audiologist found that the Veteran's tinnitus was secondary to his hearing loss. Given that the AOJ service connected the tinnitus, logic would dictate service connection is warranted for the left ear hearing loss because the tinnitus was secondary to the hearing loss. Remand is necessary to clarify this opinion. Prostatitis and ED In a March 17, 2018 statement, which VA received on April 10, 2018, the Veteran claimed that his "chronic prostatitis is directly associated with drinking contaminated water at Camp Lejeune (CL)." The Veteran's service personnel records show that he was stationed at CL for more than 30 days between 1979 and 1980. Pursuant to 38 C.F.R. § 3.307(a)(7)(3), VA therefore presumes he was "exposed during such service to the contaminants in the water supply" at CL. That said, prostatitis is not, pursuant to 38 C.F.R. § 3.309(f), presumptively linked to the contaminated water at CL. However, this does not preclude service connection being found a direct theory of entitlement. VA examined him for the prostatitis claim in September 2019. When asked to opine on etiology, the examiner stated: No evidence of prostatitis or BPH during service found. No evidence of symptoms of BPH or prostatitis found in service treatment records. There is not enough evidence to support that the current BPH with chronic prostatitis is due to service. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. This opinion is flawed because the examiner did not opine on the relationship, if any, between the Veteran's presumed exposure to contaminated water at CL and his prostatitis. Remand is therefore warranted for an addendum opinion. VA also examined the Veteran for his ED in September 2019. The examiner diagnosed the Veteran with ED, and he opined that the etiology was unknown. Nevertheless, because the Veteran has claimed ED secondary to the prostatitis, and because the prostatitis examination opinion was flawed, the Board will remand the ED claim because the prostatitis addendum opinion may impact the ED opinion. TB residuals and lung nodules/polyps In a February 2012 statement, the Veteran said, "I was diagnosed with TB in 1986." In this same statement, the Veteran also said "I don't smoke, but I have lung nodules from breathing asbestos during training missions aboard the USS Ponce LPD 19. I served on this Naval Vessel about 6 months as part of Teamwork 80." In this same statement, the Veteran also said "I received CNS gas training. I went to the gas chamber at least 7 times over a 2-year period. Breathing in these gases left me with lung polyps." In February 2013, the AOJ requested the Veteran explain his TB and lung nodules claims more fully. The Veteran did not respond, and the AOJ denied both claims in October 2013. In his January 2014 Notice of Disagreement, the Veteran's representative noted ONE OF THE ISSUES THE VETERAN ASKED FOR WAS TB. WITH[IN] 6 MONTHS OF DISCHARGE, THE VETERAN WAS HIRED AS A VAMC EMPLOYEE. HIS EMPLOYMENT PHYSICAL UPON HIRING AT THE VAMC JACKSON SHOWED HE WAS TESTED POSITIVE FOR TB AND WAS ADMITTED TO VAMC JACKSON ABOUT AUGUST 1984 AND HE WAS THERE 4-6 WEEKS FOR TB. HE WAS TOLD BY THE RADIOLOGIST AT VAMC JACKSON THAT THE LUNG NODULES MAY BE SECONDARY TO TB OR HAVE BEEN CAUSED BY EXPOSURE TO ASBESTOS. In January 2014, the Veteran attempted to claim service connection for a lung disorder. He claimed entitlement based on 1) asbestos exposure on the USS Ponce LPD 15, 2) exposure to contaminated water at CL, or 3) as secondary to TB. The AOJ did not adjudicate this claim, noting in a November 2014 rating decision that it was already on appeal. In October 2016, the AOJ issued a Statement of the Case. For TB, the AOJ found VA treatment records dated September 29, 1986 show you were hired by the VA Hospital in April 1986 and underwent a routine employment physical. You were noted to have a positive PPD skin test of approximately 20 millimeters, a right upper lobe infiltrate by chest x-ray at that time. You received INH and rifampin therapy for approximately 5 months. You were noted to be completely asymptomatic except for very mild shortness of breath when you ran. You had no cough, chest pain, fever, chills, night sweats, history of TB exposure, hemoptysis, history of exposure to birds, or travel in the West. All health department cultures and stains times two have been negative thus far. In light of the negative cultures and stains by the Health Department and the normal chest x-ray by the VA Medical Center, you were discharged home with no further therapy indicated that that time. In November 2016, the Veteran perfected an appeal of these issues in a VA Form 9. He noted that he had "problems with [his] breathing because of exposure to asbestos aboard the ship [he] served on." For the Veteran's understanding and that of future adjudicators, the Board construes the Veteran's TB claim to be one for the residuals of TB. Neither the Veteran nor his representative have suggested that the Veteran has been diagnosed with TB during the pendency of the appeal. Instead, it appears that the Veteran is claiming service connection for the unstated residuals of a purported TB diagnosis in 1986. The Board is mindful of 38 C.F.R. § 3.307(a)(3) which, in conjunction with 38 C.F.R. § 3.309(a), combine to award service connection for TB if it manifests to a degree of 10 percent or more if the Veteran develops it within three years of separating from service. Because the Veteran separated in February 1984 and he was diagnosed with a positive purified protein derivative, aka "PPD," test in April 1986, these regulations are implicated. However, a positive PPD test does not, by itself, prove that the Veteran had TB. Therefore, remand is warranted for an examination to review the medical records from 1986 and to interview the Veteran so that the Board may more fully understand what happened 35 years ago. As for the lung nodules claim, the above evidence shows the Veteran has advanced four possible theories of entitlement 1) asbestos exposure on the USS Ponce LPD 15, 2) exposure to contaminated water at CL, 3) exposure to gases during gas chamber training, and 4) as secondary to TB. At a minimum, the Veteran merits an examination based upon his presumed exposure to contaminated water at CL. In addition, the Veteran's DD Form 214 indicates he had 2 months and 7 days of sea service, although his personnel records do not appear to provide any further details about when and where this occurred. The Board will also instruct the AOJ to ask the Veteran to more fully explain when, where and how he was exposed to asbestos aboard the USS Ponce LPD 15. Left ankle stress fracture and left ankle arthritis A June 21, 1979 service treatment records shows the Veteran was treated for a "clinical stress fx" of his left ankle. In a February 2012 statement, the Veteran stated "in boot camp I had my first injury. A stress fracture in my left foot." In September 2019, a VA examiner diagnosed the Veteran with a left foot strain. He also stated that imaging studies were not performed despite VA's requirement of such studies to diagnose degenerative arthritis or traumatic arthritis. The examiner opined that the Veteran's ankle claims were not related to service, stating: No evidence of chronic ankle condition found in review of service treatment records. No evidence of recurrent left ankle pain during service. There is not enough evidence to support that the chronic left ankle sprain is due to service. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Because the Veteran claims he has arthritis related to his in-service stress fracture, the examination should have included imaging studies. Additionally, because the examiner did not address the June 21, 1979 STR and whether the stress fracture resulted in the claimed disabilities, remand is warranted for a new examination. "Chronic pain all over" In December 2011, the Veteran claimed service connection for "chronic pain all over." In his November 2016 VA Form 9, the Veteran stated he has "arthritis now as a result of [a] left foot fracture" and that this resulted in "chronic pain and limited mobility." In an April 2018 statement, the Veteran stated he has "chronic pain with urination," as part of his prostatitis claim. The generic nature of the "chronic pain all over" claim prohibits the Board from effectively reviewing this issue. Therefore, the Board will request the AOJ to attempt to clarify the Veteran's claim. The Veteran is advised that if he does not respond to the AOJ's clarification request, the Board will not evaluate this as a separate claim. Instead, it will attribute the claim of "chronic pain all over" to the prostatitis and left ankle claims. The matters are REMANDED for the following action: 1. Please contact the Veteran to explain how, when, and where he was exposed to asbestos when he served aboard the USS Ponce LPD 15. Specifically ask the Veteran to clarify when and where he performed the 2 months and 7 days of sea service documented in his DD Form 214. 2. Please contact the Veteran to explain more fully his claim for service connection for "chronic pain all over." Ask him to explain to what body system or part of his body he is seeking service connection. Advise him that if he does not respond, the Board will not evaluate this as a separate claim. Instead, it will attribute the claim of "chronic pain all over" to the prostatitis and left ankle claims. 3. Schedule the Veteran for a computed tomography (CT) scan for his left ear hearing loss claim, as indicated by the ENT who examined the Veteran in May 2013. After the CT scan is completed, arrange for a qualified medical professional to review the claims file, to include the CT scan and this Remand, and opine on the following: a) Is it at least as likely as not (50 percent probability) that the Veteran's left ear hearing loss began during, or was otherwise caused by, active service? Why or why not? b) The AOJ, relying on a May 2013 ENT opinion, found the Veteran's tinnitus was "directly related to military service" and service connected it. However, a May 2013 audiologist's opinion stated that the "Veteran has diagnosis of clinical hearing loss and his or her tinnitus is at least as likely as not (50% probability or greater) symptom associated with the hearing loss as tinnitus is known to be symptom associated with hearing loss." Is it at least as likely as not (50 percent probability) that the audiologist and ENT have equally valid opinions but simply disagree regarding the etiology of the Veteran's left ear hearing loss? Why or why not? Put another way, what, if any, reason exists to find one opinion more probative than the other? 4. Obtain an addendum medical opinion from the medical professional who examined the Veteran for his prostatitis and ED claims in September 2019. If that person is not available, arrange for an addendum medical opinion from a qualified medical professional. The medical professional, after reviewing the claims file, to include this Remand, should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's prostatitis began during, or was otherwise caused by, his active service? Why or why not? b) Is it at least as likely as not (50 percent probability) that the Veteran's prostatitis CAUSED his ED? Why or why not? c) Is it at least as likely as not (50 percent probability) that the Veteran's prostatitis AGGRAVATES his ED? Why or why not? In answering question (a), the medical professional is advised that VA, pursuant to 38 C.F.R. § 3.307(a)(7)(3), presumes the Veteran was exposed to contaminated water at Camp Lejeune while he served there. The medical professional must address what role, if any, this presumed exposure had in the Veteran's development of prostatitis. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed residuals of TB and lung nodules/polyps. Based on a review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of his disorders, please answer the following: a) Is it at least as likely as not (50 percent probability that the Veteran had TB in 1986? Why or why not? In answering question (a), you must discuss the relevance and meaning of the Veteran's positive PPD test and subsequent INH and rifampin therapy in 1986. b) If the Veteran had TB in 1986, is it at least as likely as not (50 percent probability) that the TB CAUSED his lung nodules/polyps? Why or why not? c) If the Veteran had TB in 1986, is it at least as likely as not that the TB, or any associated residuals, AGGRAVATES the Veteran's lung nodules/polyps? Why or why not? d) Is it at least as likely that any diagnosed respiratory disorder, to include the claimed lung nodules/polyps, began during, or was otherwise caused by, the Veteran's active service? Why or why not? In answering question (d), you MUST address the Veteran's contentions that his respiratory symptoms resulted from 1) asbestos exposure on the USS Ponce LPD 15, 2) his presumed exposure to contaminated water at Camp Lejeune, or 3) exposure to gases during gas chamber training. 6. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's claimed left ankle disorders. This examination MUST include X-rays. The medical professional, after reviewing the claims file, to include this Remand, should opine: a) Is it at least as likely as not (50 percent probability) that the Veteran's left foot strain, as diagnosed at the September 2019 VA examination began during, or was otherwise caused by, his active service? Why or why not? (Continued on the next page) b) Is it at least as likely as not (50 percent probability) that any left foot disorder, other than the Veteran's left foot strain diagnosed at the September 2019 VA examination, began during, or was otherwise caused by, his active service? Why or why not? In answering questions (a) and (b), the examiner must address the relevance, if any, of the Veteran's June 1979 left ankle stress fracture, as documented in his STRs. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.