Citation Nr: 22005299 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 17-07 450 DATE: February 1, 2022 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for glaucoma is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for prostate disability is denied. Entitlement to service connection for skin disability is denied. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy is denied. Entitlement to service connection for right lower extremity (RLE) peripheral neuropathy is denied. Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy is denied. Entitlement to service connection for left lower extremity (LLE) peripheral neuropathy is denied. FINDINGS OF FACT 1. The evidence is persuasively against finding hearing loss disability under 38 C.F.R. § 3.385 during the appeal period. 2. The evidence is persuasively against finding glaucoma manifested during service or is related to service. 3. The evidence is persuasively against finding erectile dysfunction manifested during service or is related to service. 4. The evidence is persuasively against finding prostate disability manifested during service or is related to service. 5. The evidence is persuasively against finding skin disability manifested during service or is related to service. 6. The evidence is persuasively against finding peripheral neuropathy manifested during service or is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for glaucoma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 4. The criteria for service connection for prostate disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for skin disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for RUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for RLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for LUE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for LLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to November 1967 and November 1967 to May 1972. For the period of service from November 1967 to May 1972, discharge was determined dishonorable for VA purposes. A December 2020 Board decision remanded the claims for entitlement to service connection for hearing loss, glaucoma, erectile dysfunction, prostate disability, skin disability, and peripheral neuropathy for VA examinations. Notification from LHI received February 16, 2021 noted the Veteran refused the examination and notification from LHI received October 12, 2021 noted he withdrew his claim. An October 2021 SSOC informed the Veteran because he had not contacted VA to provide good cause, no further examinations were scheduled. The SSOC stated if he wished to withdraw his claims, he needed to inform VA in writing. On December 13, 2021, VA sent a letter to the Veteran stating it was unclear whether he wished to withdraw his appeals and a request for withdrawal of an appeal must be in writing. The letter stated if VA did not hear from the Veteran within 30 days of the letter, the Board would proceed to review all issues on appeal. As no response was received, the Board will proceed with adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). VA has recognized the Veteran is presumed exposed to herbicide agents during service. If a veteran was exposed to an herbicide agent during active service, the diseases set forth in 38 C.F.R. § 3.309(e) will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, except early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The Board notes the record shows the Veteran was scheduled for VA examinations for the below issues and he refused to appear for the examinations. The Veteran did not provide good cause or request the examinations be rescheduled. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Therefore, the Board will adjudicate the claims based on the evidence of record. 1. Service connection for bilateral hearing loss disability The Veteran contends his hearing loss manifested during service or is related to service. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The evidence is persuasively against finding hearing loss disability under 38 C.F.R. § 3.385 during the appeal period. VA treatment records show September 2010 VA audiological testing revealed sensorineural hearing loss and hearing aids were provided. However, the treatment records did not provide decibel frequencies and did not use the Maryland CNC. Therefore, the Board is unable to determine whether his hearing loss amounted to hearing loss disability under 38 C.F.R. § 3.385. As noted above, the record shows the Veteran refused examinations for hearing loss in February 2021 and October 2021. Therefore, the Board's review is limited to the evidence of record. 38 C.F.R. § 3.655(b). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for bilateral hearing loss disability is denied. 2. Service connection for glaucoma The Veteran contends glaucoma related to in-service exposure to herbicide agents. The Veteran has glaucoma disability during the appeal period. VA has recognized the Veteran is presumed exposed to herbicide agents during service. Therefore, the question is whether his glaucoma manifested during service or is otherwise related to service, to include in-service exposure to herbicide agents. Presumptive service connection is not available for glaucoma under 38 C.F.R. § 3.309(e). Service connection may still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). STR do not show, and the Veteran has not contended, glaucoma manifested during service. There is no competent opinion of record supporting the Veteran's glaucoma is related to service or herbicide agent exposure. The Veteran is not competent to opine on the etiology of his glaucoma, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, the record shows the Veteran refused examinations for glaucoma in February 2021 and October 2021. Therefore, the Board's review is limited to the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, as the evidence is persuasively against finding glaucoma manifested during service or is related to service, service connection for glaucoma is denied. 3. Service connection for erectile dysfunction The Veteran contends erectile dysfunction related to in-service exposure to herbicide agent. The Veteran has erectile dysfunction disability during the appeal period. VA has recognized the Veteran is presumed exposed to herbicide agents during service. Therefore, the question is whether the Veteran's erectile dysfunction manifested during service or is otherwise related to service, to include in-service exposure to herbicide agents. Presumptive service connection is not available for erectile dysfunction under 38 C.F.R. § 3.309(e). Service connection may still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). STR do not show, and the Veteran has not contended, erectile dysfunction manifested during service. There is no competent opinion of record supporting the Veteran's erectile dysfunction is related to service or herbicide agent exposure. The Veteran is not competent to opine on the etiology of his erectile dysfunction, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, the record shows the Veteran refused examinations for erectile dysfunction in February 2021 and October 2021. Therefore, the Board's review is limited to the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, as the evidence is persuasively against finding erectile dysfunction manifested during service or is related to service, service connection for erectile dysfunction is denied. 4. Service connection for a prostate disability The Veteran contends prostate disability related to in-service exposure to herbicide agent. Prostate cancer is a disease set forth in 38 C.F.R. § 3.309(e). However, the evidence does not show, and the Veteran has not contended, prostate cancer. The Veteran contends, and the medical records show, enlarged prostate. Presumptive service connection is not available for enlarged prostate under 38 C.F.R. § 3.309(e). Service connection may still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). STR do not show, and the Veteran has not contended, enlarged prostate during service. There is no competent opinion of record supporting the Veteran's enlarged prostate is related to service or herbicide agent exposure. The Veteran is not competent to opine on the etiology of his enlarged prostate, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, the record shows the Veteran refused examinations for prostate disability in February 2021 and October 2021. Therefore, the Board's review is limited to the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, as the evidence is persuasively against finding enlarged prostate manifested during service or is related to service, service connection for prostate disability is denied. 5. Service connection for a skin disability The Veteran contends skin disability with onset during service or related to in-service herbicide agent exposure. First, regarding current disability, the nature of the Veteran's skin disability during the appeal period is unclear. The Veteran describes periodic rash and acne. However, treatment records during the appeal period did not observe or diagnose a skin disability. Treatment records noted a medical history of skin sensation disturbance. Because the Veteran refused examinations for skin disability in February 2021 and October 2021, the Board's review is limited to the evidence of record. 38 C.F.R. § 3.655(b). Regarding nexus, STR do not show skin complaint, treatment, or diagnosis during the Veteran's period of honorable active duty service. There is no competent opinion of record supporting any current skin symptoms are related to service or herbicide agent exposure. The Veteran is not competent to opine on the etiology of his skin symptoms, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, as the evidence is persuasively against finding current skin symptoms manifested during service or are related to service, service connection for skin disability is denied. 6. Service connection for RUE peripheral neuropathy 7. Service connection for RLE peripheral neuropathy 8. Service connection for LUE peripheral neuropathy 9. Service connection for LLE peripheral neuropathy The Veteran contends peripheral neuropathy of the RUE, RLE, LUE, and LLE related to in-service exposure to herbicide agents. VA regulations provide presumptive service connection for early-onset peripheral neuropathy which manifested to a compensable degree within one year of the Veteran's last exposure. 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). The evidence does not show peripheral neuropathy during service or within a year of separation from service. There is no competent opinion of record supporting the Veteran's peripheral neuropathy is related to service or herbicide agent exposure. The Veteran is not competent to opine on the etiology of his peripheral neuropathy, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (Continued on the next page) As noted above, in February 2021 and October 2021, the record shows the Veteran refused examinations for peripheral neuropathy. Therefore, the Board is limited by the evidence of record. 38 C.F.R. § 3.655(b). Accordingly, service connection for peripheral neuropathy is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, Associate 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.