Citation Nr: 21013668 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-10 681 DATE: March 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to petrochemical agents, lubricants, solvents and/or substances, is denied. Entitlement to service connection for myelitis of the cervical spine, to include as secondary to petrochemical agents, lubricants, solvents and/or substances, is denied. Entitlement to service connection for rheumatic myalgia, to include as secondary to petrochemical agents, lubricants, solvents and/or substances, is denied. FINDINGS OF FACT 1. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss was caused by injury in active duty. 2. ED did not manifest in service and is not otherwise attributable to service. 3. The Veteran does not have myelitis of the cervical spine. 4. The Veteran does not have rheumatic myalgia. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss was caused by injury in service. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for ED have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 3. The criteria for entitlement to service connection for myelitis of the cervical spine have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 4. The criteria for entitlement to service connection for rheumatic myalgia have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from November 1965 to November 1967 as a petroleum storage and equipment storage specialist. See May 18, 2012 Certificate of Release or Discharge. His principal duties were noted to be forklift operator and later as a storage supervisor. See Military Personnel Records, posted August 8. 2014. These matters come before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the Veteran’s claims file. In February 2020, the Board remanded the appeal to obtain additional information from the Veteran regarding exposure to hazardous substances, medical records, and examinations and opinions. The Board finds that there has been substantial compliance with the remand directives. Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 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 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, including myelitis and bilateral sensorineural hearing loss, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Bilateral hearing loss The Veteran contends that hearing loss was caused by, or aggravated by, an explosion during a live exercise during basic training that later required ear surgery to correct residua abnormalities. See June 2013 VA examination; October 7, 2019 Hearing Transcript, pp. 3-4. In a November 2013 notice of disagreement, the Veteran reported that the explosion caused his ears to bleed and that he was hospitalized by the Army after this injury. Service treatment records (STRs) are silent for any ear injuries including from an explosion in recruit training. In an August 1967 discharge examination, the Veteran denied any ear trouble and testing showed normal hearing acuity. The record does contain a report of three days of hospitalization in January 1966 but the diagnosis was an upper respiratory infection that had improved. There was no limitation of duty and no mention of an explosion or hearing loss. In July 2013, the Veteran underwent a VA hearing examination. Testing showed puretone thresholds greater than 40 decibels at multiple frequencies in both ears. Speech discrimination scores were 76 and 92 percent in the right and left ears respectively. The examiner noted the Veteran’s report of exposure to noise from an explosion in recruit training, right ear stapes surgery in the 1970s, and the placement of a right ear pressure equalizing tube five to ten years earlier. The Veteran reported that he had worked in a factory for twenty-nine years and used to hunt. The examiner did not provide an opinion on the cause of the current hearing loss because the service-treatment records were not available. The Veteran underwent another VA hearing examination in September 2013. The examiner reviewed the STR and noted no abnormal hearing on entry and discharge from active duty and no significant threshold shifts. Therefore, the examiner found that the current hearing loss was not caused by injury in service. However, the examiner noted that tinnitus can also be caused by both impulse and long term noise exposure and found that the Veteran’s tinnitus was caused by noise exposure in service. The RO granted entitlement to service for tinnitus in an October 1, 2013 rating decision, opining that tinnitus has been established as directly related to military noise exposure. See October 1, 2013 Rating Decision, p. 3. In the same rating decision, the RO denied service connection for hearing loss, noting that the examiner, as reflected above, indicated that the Veteran’s hearing impairment was less likely as not caused by, or aggravated by, military noise exposure. During the October 2019 Board hearing, the Veteran testified of the circumstances of the detonation of an explosive charge near him during an exercise on an infiltration course. He reported spending three days in an Army hospital. The representative called attention to a 1966 line of duty report and profile (record of limitation of duty. As noted above, this report contained a diagnosis of respiratory infection with no mention of explosions or hearing loss. In February 2020, the Veteran was afforded a VA audiological test, pursuant to the Board’s February 2020 remand directives. This audiologist’s audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 85 90 95 LEFT 30 25 55 75 86 Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 96 percent in the left ear. Upon review of the evidence of record, the audiologist opined that the Veteran’s bilateral hearing loss was not as likely as not incurred in or caused by the claimed in-service event, illness, or injury (explosion). The audiologist noted that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The Veteran had a low noise MOS and did not serve in combat. There is no report of complaint/treatment for hearing decrease in STRs or at separation. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case; therefore it is less likely than not that the hearing loss is related to military noise exposure. However in a separate, concurrent medical opinion, the audiologist noted that the Veteran reported the onset of hearing loss and tinnitus after an explosion in boot camp in which he was hospitalized with bleeding from the ears for 3 days. Post-service, he required a stapedectomy. It is unknown why the stapedectomy was required. The Veteran could not recall details and the record does not contain evidence of the situation. If the Veteran sustained a perforation in the ear drum as a result of the explosion, and a secondary cholesteatoma occurred as a result of the injury, requiring reconstruction of the middle ear ossicles including a stapedectomy, it is at least as likely as not that the hearing loss was a result of military service. In December 2020, the RO requested that another VA audiologist clarify the two opinions. However, the new audiologist could not provide an appropriate medical opinion given the significant differences between the examination report and the original opinion. There is evidence both for and against the occurrence of an explosion in boot camp of sufficient severity as to cause ear drum rupture and bleeding that ultimately required post-service surgery. In lay evidence and testimony, the Veteran has provided a consistent and plausible account of the explosion in boot camp and that his ears were bleeding. The Veteran is competent to convey discernable symptoms. See Caluza, Jandreau, both supra. However, the STRs are silent for any such injury and records of hospitalization clearly show that it was for a respiratory infection. Any ear drum rupture would have been noted but it was not. Moreover, the Veteran denied any injury or hearing loss in the discharge examination. He also reported the surgery in the 1970s for which there are no records. The February 2020 examiner provided a conditional opinion indicating that if the explosion and ear drum rupture occurred, and the reported surgery could have been correction of a residual of an ear drum rupture, then it was at least as likely as not a cause of the current hearing loss. Resolving the controversy over occurrence and ear injury in service and subsequent surgery in the Veteran’s favor based only on his consistently reported lay evidence, the Board finds that the credible, and probative lay and medical evidence is at least in relative equipoise. Resolving the benefit of doubt in the Veteran’s favor, service connection for bilateral hearing loss is granted. See 38 U.S.C. § 5107(b); Gilbert, supra. ED Myelitis of the cervical spine Rheumatic myalgia The Veteran contends that the three disabilities, as reflected above, were incurred in, aggravated by, or otherwise attributable to, active duty service. Additionally, the Veteran asserts that ED, myelitis of the cervical spine, and rheumatic myalgia were caused by, or aggravated by, in-service exposure to petrochemical agents, lubricants, solvents and/or substances. In the Veteran’s August 1967 separation report of medical examination, a clinician reported normal clinical evaluations of the Veteran’s heart; vascular system; spine and other components of the musculoskeletal system; and upper and lower extremities. In his associated August 1967 separation report of medical history, the Veteran indicated that had not had and did not have rheumatic fever; painful or swollen joints; arthritis or rheumatism; recurrent back pain; and/or painful or ‘trick’ shoulder. Upon a VA examination in July 2013, a VA clinician indicated that the claims file contained no more than “fragmentary medical records” to support findings that the Veteran’s present disability is attributable to service. This clinician provided a diagnosis of cervical herniation with an onset on 1987 or so. The clinician noted that the Veteran endorsed pain and exhibited an abnormal gait. As to etiology, the clinician opined that disc herniation most likely results in root compression and radicular symptoms if it occurs laterally, whereas spinal cord compression and clinical myelopathy can occur if there is herniation of a large midline disc. This same month, VA received medical records from Dr. V., a private physician. These records disclose encounters from 1994 to 2012. Dr V.’s records include correspondence with other clinicians. For example, in a July 1994 letter, Dr. K., a private neurologist indicated that the Veteran had symptoms of myelopathy at the T-4 level and endorsed ED. A May 1995 letter from Dr. K., another private neurologist noted that the Veteran had mild generalized weakness with hyperactive jaw jerk, conjecturing the Veteran might have underlying cervical myelopathy or a degenerative brain disorder of an unknown etiology. Clinical notations reference cervical myelopathy and depression. This file also contains copies of military personnel records which disclose where the Veteran was stationed at different points during his active duty service. Likewise, there is an embedded lay statement of July 2013, in which the Veteran wrote about his exposure to unknown chemicals and mercury. The Veteran was afforded a VA male reproductive system examination system examination on July 2013. A VA clinician reviewed the claims file; considered the Veteran’s lay accounts; and conducted an appropriate evaluation. The clinician diagnosed ED with onset in 1994. This clinician opined that the Veteran’s ED was probably secondary to his blood pressure medication, hydrochlorothiazide. In August 2013, VA received private medical records. A review of private treatment records from G., a private medical facility, reveals that the Veteran sought treatment for osteoarthritis. As to the Veteran’s medical history, these records disclosed that the Veteran underwent a C6-7 fusion. The Veteran also endorsed low back pain. A review of private treatment records from FMC., a private medical facility, shows active problems of back pain; left trochanteric bursitis; right knee osteoarthritis; and multiple site osteoarthritis. A clinician noted that the Veteran had undergone a percutaneous discectomy. The Veteran was also provided rheumatology exercise educational programming. In a November 2013 statement, the Veteran noted his earlier contentions. Further, the Veteran wrote that that he had discerned, through his own research and private medical records, that his disabilities are related to mercury exposure in service. In January 2014, VA received a lay statement from one of the Veteran’s military comrades. This party reported that he served in the 339th and 340th supply company with the Veteran. On one occasion, the Veteran reported that he had to clean up mercury. See January 29, 2014 Buddy/Lay Statement, (capitalization and obscenity in original). A January 2014 emergency room (ER) report from G., a clinician opined that the Veteran had a history of possible mercury poisoning from when the Veteran was in service in Japan. This clinician did not opine from whence such information was gleaned. In private records received in April 2015, there is a laboratory study which shows that the Veteran’s blood arsenic level was <10 (reference range of 60 or less); blood lead level was <5 (reference range of 14 or less); and blood mercury was <20 (reference range of 50 or less). Otherwise, these records contain assessments of the Veteran’s current medical status, to include imaging of the cervical spine herniation and the Veteran’s osteoarthritis. Scrutiny of these records fails to provide any etiological guidance or causation attributable to mercury, petrochemical agents, lubricants, solvents and/or substances. However, a clinician opined that the Veteran was exposed to coolants and antifreeze agents at the “plant” where he worked after separation from service. In March and April 2015 ER reports from G., clinicians opined that the Veteran had a history of possible mercury poisoning from when the Veteran was in service in Japan. These clinicians did not opine from whence such information was gleaned. In a February 2017 lay statement, the Veteran re-conveyed his earlier points, underscoring his present level of disability and the role that he believes mercury exposure has played. Records received in February and March 2017 provide extensive guidance as to the Veteran’s courses of treatment for many medical diseases, including those on appeal. The records include imaging studies, prescription, and educational programming but do not contain information as to mercury, petrochemical agents, mercury, lubricants, solvents and/or substances. A review of VA treatment records shows that the Veteran’s active problems included intervertebral disc disorder with myelopathy, cervical region; other specified personal history presenting hazards to health; and history of right stapes in the early 1970s. In February 2018, the Veteran and his spouse submitted a joint lay statement. They noted that the government has a responsibility to return the commitment that the Veteran showed the country. And, they referenced that Veteran’s service comrades lay statement about cleaning up mercury, as noted above. The Veteran noted that he dictated this lay statement to his spouse because of memory problems. At the October 2019 Board hearing, the Veteran stated that he was not afforded a hazardous materials (HAZMAT) suit when he handled petroleum products in service. VA received an internet download with editorial markings in November 2019. In pertinent part, this downloaded material that the military was accused of contaminating the environment Okinawa Japan with a hazardous chemical. A party encircled a text fragment that mentioned mercury, cadmium, and toxic polychlorinated biphenyls (PCBS). The Board acknowledges this internet material; however, this submission includes neither a competent medical report nor a competent epidemiological report of how this accusation applies to the facts of the Veteran’s medical history. As such, this downloaded internet material is of less value. In March 2020, the Veteran submitted a letter in which he stated that he had handled solvents in Fort Lee, Virginia, where he was also exposed to fumes. The Veteran wrote that he handled and processed aviation fuel, diesel fuel, and motor gas with no protection. He served at Fort Lee from March to May 1966. The Veteran also wrote that he engaged in clean-up activities with no protection. And the Veteran again described the clean-up of mercury account in Okinawa, Japan, as noted above. Here, the Veteran added that he was also exposed to mercury vapors. In November 2020, the Veteran was afforded a VA examination for ED. The clinician wrote that the Veteran’s ED was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for this negative nexus opinion, the clinician noted that records (misstated as “STRs”) indicate a diagnosis of ED, but there is no evidence of appointments, treatment, and/or follow-up for the ED diagnosis. While the clinician opined that he did not doubt the diagnosis, the Veteran endorsed that ED started when he was in his 20s-to-early-30s; was prescribed Viagra which failed; and then offered a pump device. However, clinical documentation of this course of treatment was not found upon scrutiny of the claims file. As to proximate causation and aggravation, the clinician noted that he was not able to confirm a current chronic diagnosis of ED, there can be not plausible opinion as to proximate causation or aggravation beyond natural progression. Upon VA spine examination in November 2020, a VA clinician diagnosed degenerative arthritis of the spine; spinal fusion; and spinal stenosis. Specific to the cervical spine, the clinician diagnosed myelopathy. The clinician opined that myelitis of the cervical spine was less likely than not incurred in or caused by the claimed in service events (“exposures”). As a rationale for this negative nexus opinion, the clinician noted that myelopathy and myelitis are not the same condition. Cervical myelopathy, of which the Veteran has a current diagnosis not cervical myelitis, is due to a disease or process involving the spinal cord. Again, the Veteran has cervical myelopathy due to degenerative spine disease. The diagnosis of cervical myelopathy is clear in the medical evidence of record and confirmed through magnetic resonance imaging (MRI). The exposures of petrochemical agents, lubricants, solvents, mercury, and/or substances do not cause degenerative spine disease and subsequent myelopathy. Unequivocally, the cause of the Veteran’s myelopathy is degenerative spine disease. Degenerative spine disease is considered a natural aging process, which was age-appropriate at the time of diagnosis; such is due to normal wear and tear and desiccation of the discs and associated inflammation. Such a medical etiology is supported by peer-reviewed medical literature. Indeed, this also applies to aggravation as degenerative spine disease (and subsequent myelopathy) did not develop until well after service. A remote prior exposure in service cannot impact a disease entity that began after service and therefore in unrelated to service. In November 2020 the Veteran was afforded a VA examination for rheumatic myalgia. Upon clinical testing and evaluation, this clinician indicated that the Veteran did not have rheumatic myalgia or other form of non-degenerative arthritis. Therefore, the clinician opined that rheumatic myalgia was less likely as not incurred in or caused by any in-service incurrence (to include the Veteran’s contentions of exposures of petrochemical agents, lubricants, solvents, mercury, and/or substances. As a rationale, the clinician noted that the Veteran did not have the contended disease entity. The Veteran contends that ED, myelitis of the cervical spine, and rheumatic myalgia were incurred in active duty service, through exposure to petrochemical agents, lubricants, mercury, solvents and/or substances. The Board recognizes the Veteran’s (his spouse’s and his military comrade’s) belief in this theory of etiology and causation. Nevertheless, as a lay person, the Veteran lacks the highly specialized epidemiological and medical training to render complex scientific and medical opinions. See Jandreau, supra. As such, these lay contentions as to etiology warrant highly diminished probative weight. In the absence of proof of a present disability there can be no valid claim. Brammer, supra. Upon review of the totality of the competent medical evidence of record, the Board observes that no clinician or physician has rendered diagnoses of either myelitis of the cervical spine or rheumatic myalgia. Arguably the Veteran may have meant cervical myelopathy; however, even if the disability were cervical myelopathy, the weight of competent evidence is that it was not caused by chemical exposure. See Shedden, supra. Here, the Board again notes that the Veteran reported that he had not had and did not have rheumatic fever; painful or swollen joints; arthritis or rheumatism; recurrent back pain; and/or painful or ‘trick’ shoulder in his August 1967 report of medical history. As to ED, the Board accepts that a current disability is present. However, the weight of evidence is against causation by activities in service including chemical exposure. While the Veteran insists that ED was caused by in-service exposure to petrochemical agents, lubricants, mercury, solvents and/or substance, the Veteran has submitted neither competent scientific nor medical evidence to support this contention. Here, the Board informs the Veteran that a claimant still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). The Board assigns substantial weight to the November 2020 clinician’s opinion as to ED. The medical professional reviewed the claims file; considered the Veteran’s lay accounts; and conducted an appropriate evaluation. Moreover, this expert supported his negative nexus opinion with evidence (or lack thereof). Therefore, weight of competent and credible evidence is against these three service connection claims; there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.