Citation Nr: 21005749 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-19 605 DATE: February 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for gout is denied. REMANDED Entitlement service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a lumbar spine disability is remanded. Entitlement to service connection for a right shoulder disability, claimed as secondary to a cervical spine disability is remanded. Entitlement to service connection for a left shoulder disability, claimed as secondary to a cervical spine disability is remanded. Entitlement to service connection for hypertension, claimed as secondary to herbicide exposure is remanded. Entitlement to service connection for a stroke, claimed as secondary to hypertension is remanded. Entitlement to a disability manifested by vertigo/balance difficulty, to include as secondary to hearing loss, tinnitus, hypertension, stroke, and/or medication for service-connected disabilities is remanded. Entitlement to service connection for erectile dysfunction, claimed as secondary to hypertension, stroke, and/or service-connected coronary artery disease is remanded. Entitlement to service connection for a skin condition, claimed as secondary to herbicide exposure is remanded. Entitlement to service connection for a respiratory disability (claimed as a lung condition), to include as secondary to asbestos and/or herbicide exposure is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Bilateral hearing loss had its onset in service. 2. Tinnitus had its onset in service. 3. There is no disability manifested as gout or functional impairment of earning capacity due to gout. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for gout have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1966 to September 1970, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends that his bilateral hearing loss and ringing in his ears (tinnitus) had their onset in service due to acoustic trauma while aboard various ships. See December 2014 VA treatment record; see also October 2015 VA treatment record. The Veteran has a current diagnosis of tinnitus and bilateral hearing loss pursuant to 38 C.F.R. § 3.385. See July 2019 VA audiological examination. Thus, the first element of service connection is met. Regarding in-service incurrence, the Veteran’s service personnel records show that his duties during service were predominantly as a quartermaster aboard the USS Talladega from December 1966 to February 1968 and aboard the USS Schofield from February 1968 to September 1970. The Board finds the Veteran’s account of acoustic trauma and noise exposure during service to be credible and consistent with the circumstances of his service, and such was conceded by the July 2019 VA audiological examiner. Because in-service noise exposure is established, the second element of service connection has been met. The remaining question is whether there is a nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss and tinnitus. The Veteran has competently and credibly reported that he experienced hearing loss and tinnitus during and since service to the in-service acoustic trauma. Based on the evidence of record, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted because the disabilities had their onset in service. In reaching this determination, the Board acknowledges the negative nexus opinion provided on July 2019 VA audiological examination. The Board finds the opinion provided to be of limited probative value as the examiner’s negative nexus opinion was based on the finding that the Veteran’s separation examination was silent for hearing loss. Review of the Veteran’s service treatment records reveals that on separation examination, whispered voice testing was 15/15 bilaterally. VA recognizes whispered voice tests as unreliable. Thus, the Board assigns no probative value to the July 2019 VA audiological examiner’s negative nexus opinion. In addition, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Based on the Veteran’s credible lay statements as to the onset of his bilateral hearing loss and tinnitus, as well as the conceded acoustic trauma during service, resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted via competent and credible evidence of recurrence of symptomatology. 38 C.F.R. § 3.303(b); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). 3. Entitlement to service connection for gout. The ultimate 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 or disease. In this regard, a review of the service treatment records and the Veteran’s post-service medical records reveal no findings or a diagnosis of gout. See July 2015 VA treatment record (listing active outpatient medications include Allopurinol, for the prevention of gout). Further, there is no competent evidence showing he had gout at any time during the appeal period. While the Veteran contends that he developed such disability during his treatment for his stroke, there must be at least some competent evidence linking such a disability to service. See August 2015 VA Form 21-4138. Without such competent evidence there is no basis to grant service connection. In reaching this decision, the Board has considered the appellant’s lay statements. The question, however, is whether he has gout. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a layperson without the appropriate expertise, the claimant cannot offer a competent opinion on the diagnosis of a disorder such as gout. Inasmuch as there is no evidence of functional impairment of earning capacity due to gout during the appeal period, the claim is again denied. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, the weight of the evidence shows no gout disability or functional impairment of earning capacity due to gout. Therefore, the criteria for service connection for gout are not met, so the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.14. REASONS FOR REMAND 4. Entitlement service connection for a lumbar spine disability is remanded. 5. Entitlement to service connection for a cervical spine disability is remanded. 6. Entitlement to service connection for right lower extremity radiculopathy is remanded. 7. Entitlement to service connection for left lower extremity radiculopathy is remanded. 8. Entitlement to service connection for right upper extremity radiculopathy is remanded. 9. Entitlement to service connection for left upper extremity radiculopathy is remanded. 10. Entitlement to service connection for a right knee disability, to include as secondary to a lumbar spine disability is remanded. 11. Entitlement to service connection for a right shoulder disability, claimed as secondary to a cervical spine disability is remanded. 12. Entitlement to service connection for a left shoulder disability, claimed as secondary to a cervical spine disability is remanded. The Veteran seeks service connection for lumbar spine and cervical spine disabilities, with related bilateral upper and lower extremity radiculopathy and a right knee and a right and left shoulder disability, that had their onset in service. See December 2019 attorney statement. In addition, the Veteran contends that he has had right knee pain for over 30 years due to the physical labor performed while stationed aboard the USS Talladega, or alternatively, secondary to his lumbar spine disability. See August 2015 VA Form 21-4138; see also June 2016 VA treatment record. The Board finds the Veteran’s report of having lumbar spine and cervical spine problems during and since service both competent and credible. The Veteran has not been afforded a VA examination, and the Board finds that the existing record triggers VA’s duty to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 13. Entitlement to service connection for hypertension, claimed as secondary to herbicide exposure is remanded. 14. Entitlement to service connection for a stroke, claimed as secondary to hypertension is remanded. 15. Entitlement to a disability manifested by vertigo/balance difficulty, to include as secondary to hearing loss, tinnitus, hypertension, stroke, and/or medication for service-connected disabilities is remanded. 16. Entitlement to service connection for erectile dysfunction, claimed as secondary to hypertension, stroke, and/or service-connected coronary artery disease is remanded. The Veteran seeks service connection for hypertension as secondary to his presumed herbicide exposure in the Republic of Vietnam. Although hypertension is not listed as a disease associated with herbicide exposure under the applicable regulations, in a November 2018 study, the National Academy of Sciences Institute of Medicine (NAS) concluded that there is now evidence of a positive association between hypertension and exposure to tactical herbicides. See http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. The Veteran further contends that his stroke in July 2014 is due to his hypertension. See June 2016 VA treatment record (indicating the Veteran’s stroke was related to his high blood pressure, with residual diminished mobility and balance). Regarding his claim for service connection for a disability manifested by vertigo/balance difficulty, he contends that such is secondary to his hypertension, stroke, and/or his service-connected bilateral hearing loss, tinnitus, or service-connected medication. See April 2016 VA Form 21-526b. Regarding his claim for service connection for erectile dysfunction, the Veteran contends that such is due to his hypertension, including medication prescribed to treat his hypertension. See January 2016 VA male reproductive conditions examination. Because the Veteran’s erectile dysfunction claim is inextricably intertwined with the hypertension claim remaining on appeal, appellate consideration of entitlement to service connection for erectile dysfunction is deferred pending resolution of the hypertension claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 17. Entitlement to service connection for a skin condition, claimed as secondary to herbicide exposure is remanded. 18. Entitlement to service connection for a respiratory disability (claimed as a lung condition), to include as secondary to a skin condition, asbestos and/or herbicide exposure is remanded. The Veteran seeks service connection for a skin condition as secondary to his presumed herbicide exposure in the Republic of Vietnam. The evidence of record reflects a diagnosis of coccidioidomycosis. See January 2016 VA treatment record. The Veteran has not been afforded a VA examination, and the Board finds that the existing record triggers VA’s duty to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the Veteran’s respiratory disability, he contends that he was exposed to asbestos during service, and that his disability is secondary to his asbestos exposure, herbicide exposure, or to his skin condition. The Board finds that the Veteran was likely exposed to asbestos during service, and on remand the Veteran should be provided a VA examination. 19. Entitlement to TDIU is remanded. Finally, the Veteran’s attorney has raised the matter of entitlement to TDIU. See September 2018 attorney statement. Because the Veteran's TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and notice of how to substantiate a claim for TDIU. 3. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, onset and etiology of any current lumbar spine and cervical spine disabilities, associated neurologic disabilities of the right and left upper and lower extremities, and right and left shoulder disabilities. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any lumbar spine or cervical spine disability found, as well as any neurologic disabilities of the right and left upper and lower extremities. If no such disability is diagnosed, the examiner should indicate whether the Veteran’s lumbar spine and cervical spine pain causes any functional impairment. (b) Provide a diagnosis for any right or left shoulder disability (separate and distinct from any neurologic disabilities of the right and left upper extremities). If no such disability is diagnosed, the examiner should indicate whether the Veteran’s right and left shoulder pain, if separate and distinct from any right and left upper extremity neurologic disability, causes any functional impairment. (c) For any lumbar spine or cervical spine disability/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran’s active service. (d) Is it at least as likely as not that the Veteran’s right shoulder disability is caused by his cervical spine disability? (e) Is it at least as likely as not that the Veteran’s left shoulder disability is caused by his cervical spine disability? (f) Is it at least as likely as not that the Veteran’s right shoulder disability is aggravated by his cervical spine disability? (g) Is it at least as likely as not that the Veteran’s left shoulder disability is aggravated by his cervical spine disability? A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, onset and etiology of any current right knee disability. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any right knee disability found. If no such disability is diagnosed, the examiner should indicate whether the Veteran’s right knee pain causes any functional impairment. (b) For any right knee disability/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran’s active service. (c) Is it at least as likely as not that the Veteran’s right knee disability is caused by his lumbar spine disability? (d) Is it at least as likely as not that the Veteran’s right knee disability is aggravated by his lumbar spine disability? A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and etiology of his hypertension and stroke. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. Then, based on the results of the examination, the examiner is asked to address the following questions: (a) Is it at least as likely as not that the Veteran’s hypertension had its onset or is otherwise related to service, to specifically include exposure to herbicide agents? The opinion should include consideration and discussion of the Veteran’s presumed exposure to herbicide agents and the IOM study and the November 2018 article regarding Agent Orange and hypertension referenced above. (b) Is it at least as likely as not that the Veteran’s stroke is caused by his hypertension? (c) Is it at least as likely as not that the Veteran’s stroke is aggravated by his hypertension? (d) Is it at least as likely as not that the Veteran’s erectile dysfunction is caused by his hypertension or stroke, to include his medication to treat his hypertension? (e) Is it at least as likely as not that the Veteran’s erectile dysfunction is aggravated by his hypertension or stroke, to include his medication to treat his hypertension? (f) Is it at least as likely as not that the Veteran’s disability manifested by vertigo/balance difficulty is caused by his bilateral hearing loss, tinnitus, hypertension or stroke, to include his medication to treat his hypertension? (g) Is it at least as likely as not that the Veteran’s disability manifested by vertigo/balance difficulty is aggravated by his bilateral hearing loss, tinnitus, hypertension or stroke, to include his medication to treat his hypertension? Please note that separate opinions addressing proximate cause and aggravation are needed. Please also note that it is not necessary that the bilateral hearing loss or tinnitus be service-connected, or even diagnosed, at the time his erectile dysfunction was incurred, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and etiology of his skin condition. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any skin condition found. If no such skin condition is diagnosed, the examiner must indicate whether the Veteran’s reported skin condition causes any functional impairment. The examiner is specifically asked to address the diagnosis of coccidioidomycosis in VA treatment records. (b) For any skin condition/functional impairment diagnosed, please open as to whether it is at least as likely as not that such condition/functional impairment had its onset or is otherwise related to the Veteran’s active service, to specifically include exposure to herbicide agents? A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and etiology of his respiratory disability. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. Then, based on the results of the examination, the examiner is asked to address the following questions: (a) Provide a diagnosis for any respiratory disability found. If no such respiratory disability is diagnosed, the examiner must indicate whether the Veteran’s reported respiratory disability causes any functional impairment. (b) For any respiratory disability/functional impairment diagnosed, please open as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran’s active service, to specifically include exposure to herbicide agents or as a result of asbestos exposure therein. (c) Is it at least as likely as not that the Veteran’s respiratory disability is caused by his skin condition? (d) Is it at least as likely as not that the Veteran’s respiratory disability is aggravated by his skin condition? Please note that separate opinions addressing proximate cause and aggravation are needed. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.