Citation Nr: 21006902 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-25 928 DATE: February 5, 2021 ORDER Entitlement to service connection residuals of right perforated tympanic membrane is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD) is denied. Entitlement to service connection for diabetes mellitus (diabetes) is denied. Entitlement to service connection for right upper extremity peripheral neuropathy is denied. Entitlement to service connection for left upper extremity peripheral neuropathy is denied Entitlement to service connection for right lower extremity peripheral neuropathy is denied. Entitlement to service connection for left lower extremity peripheral neuropathy is denied Entitlement to service connection for erectile dysfunction (ED) is denied. REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for acquired psychiatric disorder (other than PTSD) is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. Residuals of right perforated tympanic membrane did not manifest in service and are not otherwise attributable to service. 2. The Veteran does not have a bilateral hearing loss disability. 3. The Veteran does not have PTSD due to a valid stressor. 4. Diabetes mellitus was not manifest in service, is not otherwise attributable to service, and was not manifest within one year of separation. 5. Right upper extremity peripheral neuropathy was not manifest in service, is not otherwise attributable to service, and an organic disease of the nervous system was not manifest within one year of separation. 6. Left upper extremity peripheral neuropathy was not manifest in service, is not otherwise attributable to service, and an organic disease of the nervous system was not manifest within one year of separation. 7. Right lower extremity peripheral neuropathy was not manifest in service, is not otherwise attributable to service, and an organic disease of the nervous system was not manifest within one year of separation. 8. Left lower extremity peripheral neuropathy was not manifest in service, is not otherwise attributable to service, and an organic disease of the nervous system was not manifest within one year of separation. 9. ED did not manifest in service and is not otherwise attributable to service. 10. Right and left upper and lower extremity peripheral neuropathies and ED are unrelated (causation or aggravation) to a service-connected disease or injury. CONCLUSIONS OF LAW 1. Residuals of right perforated tympanic membrane were not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. 3. PTSD was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.303, 3.304. 4. Diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. Right upper extremity peripheral neuropathy was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. Left upper extremity peripheral neuropathy was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. Right lower extremity peripheral neuropathy was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. Left lower extremity peripheral neuropathy was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 9. ED was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 10. Right and left upper and lower peripheral extremity neuropathies and ED are not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from December 1965 to May 1966 and active duty from May 1968 to December 1969. For the second period, an August 2012 Department of Veterans Affairs Request for Information states this period was ACDUTRA. However, a DD 214, a Report of Medical Examination dated in May 1968, and a DD Form 220 in the personnel file notes this service was active duty. The Veteran appeared at a Board hearing; a transcript is of record. With respect to the Board hearing in September 2015, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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 evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. & 2. Residuals of right perforated tympanic membrane & bilateral hearing loss The Veteran contended that his current bilateral hearing loss disability and residuals of right perforated tympanic membrane were caused by exposure to acoustic trauma. See, e.g., November 2012 statement. Specifically, he told a VA examiner that two ear disabilities started in service in 1965 or 1966, when he claimed he served in Vietnam. A May 1968 report of medical examination for active duty found normal clinical evaluation for the ears-general and ear drums. There is no examination of record for the end of the second period of service. The Veteran’s service treatment records (except for a May 1968 entrance examination) and service personnel records for his period of active service from May 1968 to December 1969 are not associated with the claims file. After the Board remand in September 2018, additional requests were made to obtain any additional records in 2019, and no additional records were obtained, as all service treatment records were previously associated with the folder. A letter was sent to the Veteran informing him of this in May 2019 and requesting he send any records he may have. He has not submitted any treatment records. When the Veteran established care with VA in July 2009, he reported right tympanic membrane as an old chronic perforation, but with no evidence of inflammation and the Veteran felt he has some degree of hearing loss. Assessment was healed perforation of right tympanic membrane. According to a VA treatment record dated in August 2016, the Veteran had a recent visit to an emergency room for acute otitis externa, but ear pain had resolved, and a physical examination showed no redness, swelling, or pain, and the tympanic membrane was intact. A VA examination occurred in June 2019. The VA examiner reviewed the claims file. The Veteran reported never wearing hearing protection when exposed to noise in service including to gunneries and live fire training exercises. The Veteran reported wearing protection most of the time before and after service when exposed to noise including hunting with guns, riding motorcycles, and impact tools. The VA examiner reported that pure tone thresholds could not be tested because the Veteran provided inconsistent results to pure tone stimuli despite multiple attempts at re-instruction, and that the results were not valid. The examiner also reported that the use of the speech discrimination scores was not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. As testing was determined to not be valid, a diagnosis is not provided. For the right perforated tympanic membrane, the Veteran reported that the condition began in 1965 to 1966 and that he had a hole in his right ear drum due to acoustic trauma in the Republic of Vietnam. After examination and review of the claims file, the VA examiner found right perforated tympanic membrane condition was less likely than not (less than 50 percent probability) incurred or caused by the claimed in-service injury, event, or illness. The Veteran did have a right perforated tympanic membrane. There was no objective medical evidence provided in service records that could establish a relationship between the current perforated right tympanic membrane condition and military service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that the Veteran had a prior examination in August 2013, which found audiometric testing was invalid due to the Veteran’s inconsistent responses and the Board remanded the matter once to obtain valid results. Here, due to the inconsistent results, no finding of hearing loss could be made. Additionally, as noted below, the Veteran has a history of not providing accurate information to VA. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The competent evidence is against a finding of a current hearing loss disability as defined at 38 C.F.R. § 3.385. Due to the absence of proof of a present disability, there is no valid claim for service connection. Entitlement to service connection requires a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The existence of disability as defined by section 3.385 is not subject to lay observation. It requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Hence, the opinion of the Veteran in this regard is not competent in this case. There is simply no probative evidence of current hearing loss disability within the meaning of the VA regulation, despite attempts to document such in VA examinations. With regards to a right perforated tympanic membrane, the Veteran contends this disorder was due to service in Vietnam in 1965 or 1966. As explained more fully below, the Veteran did not serve in Vietnam or, in fact, anywhere outside the United States. Further, a May 1968 report of medical examination found normal clinical evaluation for the ears-general and ear drums. When the Veteran established care with VA, there was report of an old healed perforated tympanic membrane, which was verified as healed again in August 2016. Therefore, while the Veteran may believe his perforated tympanic membrane is due to service in 1965 or 1966, there is no evidence of service in Vietnam and the Veteran had a normal entrance examination for the ear drums in May 1968. Therefore, while these lay statements have been considered, they are not credible. The Board gives more probative weight to the VA opinions, which are persuasive on these matters. The Board concludes that the preponderance of the evidence is against the claim for entitlement for service connection for either a perforated membrane or hearing loss disability and the claim must be denied. 3. PTSD According to the Board hearing and a July 2012 Statement in Support for Service Connection for PTSD, the Veteran alleges that he served in Vietnam and Cambodia in 1965 to May 1966 as part of a clandestine operation, that no one in this special unit used their real names, and he was never issued a DD-214 form or other records documenting this service. He reports the mission involved managing the drug trade in Cambodia and the drugs that were being sent out of Cambodia at that time. The Veteran explained the nature of the most upsetting event was being ordered to fire on a group of American soldiers that were lost from another mission. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A June 2013 Memorandum determined that the Veteran did not serve in Vietnam. As already noted, not all the service treatment records are associated with the claims file. VA has been unable to verify any periods of active duty or any other service in the Republic of Vietnam. None of the Veteran’s personal records, including DD-214s, show any foreign or oversees service. A DD-214 for the second period of service shows the Veteran served on active duty from May 1968 to December 1969 and is listed as a member of the Army National Guard. The only decoration, medal, commendation, citation, or campaign ribbon was a National Defense Service Medal, which is not indicative of any service in Vietnam or Cambodia. Review of the Veteran’s service records show that the Veteran had medical treatment in California in December 1965 and January and March 1966. A record of assignment also notes he was stationed in California during the period. Therefore, of the records that are associated with the folder, during the period the Veteran claimed he was abroad, he was stationed in California. VA treatment records do show PTSD diagnosis based on self-reported stressor of service in Cambodia. Given the evidence of record shows no such service, these diagnoses are not probative regarding the existence of PTSD. A VA examination dated in July 2019 noted that, based on the lack of evidence of combat or exposure to actual or threatened death, serious injury, or sexual violence per the Veteran’s military file, most notably his DD 214, which does not note any deployment overseas during his military service, and did not meet the criteria for PTSD. Here, we note that the Veteran did not serve in combat. He did not serve in Vietnam or Cambodia. He was not wounded in combat. He was not medically discharged from service. He did not serve overseas. He did not receive any other decoration indicative of combat. The Veteran has reported he has PTSD and there is some evidence that medical professionals found he had PTSD based on his claimed service in Vietnam or Cambodia. There is no credible evidence of such service or that the claimed stressor occurred. Therefore, these opinions are not persuasive and are not entitled to probative weight. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Regarding PTSD, the Board finds that the treatment records are not entitled to probative weight. None of these records establish PTSD based on an adequate stressor. The Board gives more probative weight to the more competent VA opinion, which reports no stressor having occurred. The Board concludes that the preponderance of the evidence is against the claim for entitlement for service connection for PTSD. The benefit-of-the-doubt doctrine is therefore not applicable. We also note that the combat rules regarding PTSD and 38 U.S.C. § 1154 do not apply since he did not serve in combat. Additional psychiatric disorders are addressed in the remand. 4. Diabetes The Veteran established medical care with VA in July 2009. The Veteran was given an assessment of diabetes at the time. A VA examination dated in July 2019 found diabetes was less likely than not (less than 50 percent) due to in-service injury, event, or illness. There was no objective medical evidence in provided in-service records that could establish a direct nexus or relationship between the Veteran's current diabetes and his military service. The earliest account of diabetes in provided records is 2009 when new VA first noted that the Veteran had a history of diabetes. The Veteran himself stated that the onset/diagnosis was in the 2000s. Although the Veteran’s service record is not complete, as noted above the Veteran did not serve in Vietnam, and presumptive service connection on that basis is not warranted. Additionally, the Veteran’s own statements are to the effect that he did not have diabetes to compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With regards to the lay statements, the Veteran stated his diabetes was found many years post-service and did not indicate any lay observable symptoms back many decades. A medical professional who reviewed the file, had knowledge of the Veteran’s medical history, and took a medical history from the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds it highly probative that this medical professional opined that the Veteran did not have diabetes until many years after service. As such, the Board finds the VA opinion is of high probative value and that the most probative evidence weighs against a finding that the Veteran had diabetes until many years of service. There is no acceptable evidence of diabetes during service or within one year of separation. Relevant chronic disease (diabetes mellitus) was not noted during service or within one year of separation within the meaning of section 3.303(b). The evidence does not establish that a relevant chronic disease was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. There is no accepted proof of exposure to herbicide agents and no proof that the remote onset of diabetes is otherwise related to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes. 5- 10. ED and peripheral neuropathy of the right lower and upper extremities The Veteran reported ED started in the 1970s and neuropathy started around 2014. See, e.g., July 2019 VA examination reports. Neuropathy is not mentioned in VA treatment records until December 2012 In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). As noted above, the Veteran did not serve oversees, much less in Vietnam. Presumptive service connection for early onset peripheral neuropathy based on herbicide agent exposure is therefore not warranted. There are two VA examination reports dated in July 2019. For ED, after examination and review of the claims file, the VA examiner diagnosed ED and opined that this condition is less likely than not (less than 50 percent probability) incurred or caused by the claimed in-service injury, event, or illness because there is no objective medical evidence provided in service records that could establish a direct nexus/relationship between the current erectile dysfunction condition and the military service. The examiner reported that ED is at least as likely as not due to diabetes mellitus. For neuropathy, after examination and review of the claims file, the VA examiner diagnosed diabetic peripheral sensory polyneuropathy of the bilateral upper and lower extremities and opined that this condition is less likely than not (less than 50 percent probability) incurred or caused by the claimed in-service injury, event or illness because there is no objective medical evidence provided in service records that could establish a direct nexus/relationship between current peripheral neuropathy and military service. The examiner reported the earliest medical evidence of treatment for peripheral neuropathy in provided treatment records is 2014. As diabetes is not service-connected, service connection for ED and neuropathy cannot be granted on secondary basis. Relevant chronic disease (organic disease of the nervous system, which includes neuropathy) was not noted during service or within one year of separation within the meaning of section 3.303(b). The evidence does not establish that a relevant chronic disease was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. The Board has also considered other theories. Here, there is no evidence of record that ED or neuropathy was not manifested during service. In addition, there is no evidence of ED or neuropathy until multiple years after service. The Veteran’s own statements are that both ED and neuropathy first manifested many years after service. There is no evidence that ED and neuropathy is otherwise due to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for ED and neuropathy and the claim must be denied. REASONS FOR REMAND 1. Skin disorder At VA examination occurred in June 2019, which found tinea versicolor and tinea unguium (onychomycosis) and opined that these conditions are less likely than not (less than 50 percent probability) due to service, as there is no objective medical evidence provided in service records that could establish a direct nexus/relationship between the current tinea versicolor or tinea unguium (onychomycosis) conditions and military service. However, the Veteran’s service medical records are incomplete, including basically all medical records for the period of active duty. Therefore, the lack of notation in service records cannot be the basis of an opinion. 2. Non-PTSD Acquired Psychiatric Disorder A VA examiner found that the Veteran had major depressive disorder, recurrent, mild and unspecified anxiety disorder which the examiner found are both directly attributable to his military service. However, this opinion does not seem to be supported by rationale, as the only rationale offered was that the Veteran’s mental health conditions have worsened since his military service but did not state whether and on what basis this rationale was based on. On remand, an opinion with adequate rationale should be obtained. 3. A respiratory disorder The Veteran’s entrance examination in May 1968 contains, in the notes section, that the Veteran that he reported having asthma in the past. This was noted in the prior remand when an opinion regarding aggravation was requested. Post-service records show an assessment of chronic bronchitis, etiology unclear, in August 2012; and showed questionable asthma and/or reactive airway disease. However, the post-remand VA examination report states the history at enlistment was unremarkable. Rationale provided was the enlistment medical history and examination do not endorse presence of any pre-existing respiratory disability. Given the above, an opinion addressing the medical history is required, as was outlined in the prior remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disorders. The examiner is asked whether it is at least as likely as not (50 percent probability or more) that any skin disorder is the result of disease or injury incurred during service. Complete rationale for all opinions offered should be provided. The examiner is to be made aware of the fact that the service medical records are incomplete, and lack of documentation should not be the sole basis of an opinion. 2. Schedule a VA examination by an appropriate clinician to determine the nature and etiology of a non-PTSD acquired psychiatric disorder, found to be major depressive disorder, recurrent, mild and unspecified anxiety disorder at the most recent VA examination. The examiner is asked whether any non-PTSD acquired psychiatric disorder at least as likely as not (50 percent probability or more) was incurred in service. Provide a complete rationale to support the opinion(s). The examiner is to be made aware of the fact that the service medical records are incomplete, and lack of documentation should be not the sole basis of an opinion. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disorder. Complete rationale for all opinions offered should be provided. The examiner is to be made aware of the fact that the service medical records are incomplete, and the lack of documentation should be not the sole basis of an opinion. The Veteran’s entrance examination in May 1968 shows that he reported having had asthma in the past. The examiner is requested to determine: (a) Whether the medical evidence of record is obvious and manifest (clear and unmistakable) that a respiratory disability pre-existed active service; (b) If so, whether the medical evidence of record is obvious and manifest (clear and unmistakable) that any preexisting respiratory disability was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up. (c) If the medical evidence of record is not obvious and manifest (clear and unmistakable) that any respiratory disability preexisted service and was not aggravated by service, whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed respiratory disability either had its onset during a period of service; or is the result of disease or injury incurred during service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.