Citation Nr: 22016406 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-18 003 DATE: March 22, 2022 ORDER Service connection for Peyronie's disease, to include as secondary to erectile dysfunction (ED), is denied. Service connection for residuals of squamous cell carcinoma is denied. Service connection for bilateral hearing loss, also claimed as secondary to residuals of squamous cell carcinoma, is denied. A compensable disability rating prior to September 16, 2021, and in excess of 10 percent, thereafter, for allergic rhinitis is denied. FINDINGS OF FACT 1. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's Peyronie's disease was either the result of his active service, or is otherwise related to an in-service event, injury or disease, to include as secondary to ED. 2. The evidence of record persuasively favors the conclusion that it is less likely than not that the residuals of squamous cell carcinoma are either the result of his active service, or are otherwise related to an in-service event, injury or disease. 3. The evidence of record persuasively favors the conclusion that it is less likely than not that bilateral hearing loss is either the result of his active service, or otherwise related to an in-service event, injury or disease, to include as secondary to his squamous cell carcinoma. 4. Prior to September 16, 2021, the Veteran's allergic rhinitis was not manifested by a greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 5. At no time has it been shown that the Veteran's allergic rhinitis resulted in nasal polyps CONCLUSIONS OF LAW 1. The criteria for service connection for Peyronie's disease, also claimed as secondary to ED, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a residuals of squamous cell carcinoma have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral hearing loss, also claimed as secondary to squamous cell carcinoma, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385. 4. Prior to September 16, 2021, the criteria for a compensable evaluation for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code (DC) 6522. 5. The criteria for a disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Air Force from July 1979 to January 2007. Procedurally, the Board issued a decision in December 2019 in which it, in pertinent part, denied service connection for bilateral hearing loss, residuals of squamous cell carcinoma, Peyronie's disease, and hypothyroidism; and denied a compensable disability rating for service-connected allergic rhinitis. The Veteran appealed the denial of the above-referenced claims to the United States Court of Appeals for Veterans Claims (Court). In February 2021, based on a Joint Motion for Remand (JMR), the Court vacated and remanded the December 2019 Board decision to the extent that it denied the claims for service connection for bilateral hearing loss, residuals of squamous cell carcinoma, and Peyronie's disease; and denied an increased rating for service-connected allergic rhinitis. Pursuant to the JMR, the Board remanded these issues in July 2021 for additional development. Such development was undertaken and the case is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection requires competent evidence showing: (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). Certain chronic diseases (to include arthritis) may be presumed to br service-connected if manifested to a compensable degree within a specified period of time following separation from service (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be granted where disability is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for Peyronie's disease The Veteran contends that his Peyronie's disease is secondary to his service-connected ED. Procedurally, in the August 2017 rating decision on appeal, the RO granted service connection for erectile dysfunction and assigned a noncompensable disability rating and special monthly compensation (SMC) for loss of use of a creative organ. The Veteran's claim for service connection for Peyronie's disease was denied based upon the finding of a lack of a current diagnosis. The Veteran appealed the denial of his Peyronie's disease. However, he did not appeal the noncompensable disability rating assigned for his service-connected ED. See April 2018 notice of disagreement (NOD). Medical records in the claims file are conflicting regarding the question of whether the Veteran has a current diagnosis of Peyronie's disease, but for the purpose of this decision, the Board will assume that such a condition is present. A review of the Veteran's service records fails to reveal that Peyronie's disease was diagnosed in service. The Veteran's service records document complaints associated with erectile dysfunction and a subsequent diagnosis of erectile dysfunction. However, the records do not note any complaints by the Veteran that he was experiencing a bend of the penis or having penis pain. A July 2014 private treatment record revealed that the Veteran reported painful erections for one month following chemotherapy and radiation in November 2013. Pursuant to the July 2021 Board remand, the Veteran was afforded a VA examination to determine whether his Peyronie's disease was secondary to his diagnosis of ED documented in his service treatment records. Upon a physical examination, a review of the medical evidence of record and consideration of the Veteran's lay statements, the VA examiner determined it was less likely than not that the Peyronie's disease was incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran's medical records did not support the contention that Peyronie's disease stemmed from the ED the Veteran experienced while in the military. The VA examiner stated that the medical record showed complaints of ED symptoms in 2006, but showed no evidence of complaints of a curved or painful erection, or Peyronie's diagnosis during service. It was noted in the record that the Veteran reported painful erections with dorsal curvature around 2013 after completion of chemotherapy/radiation for head and neck cancer. The VA examiner explained that during a visit in March 2014, a small Peyronie's plaque mid-shaft was noted on examination. Furthermore, although ED can be a symptom of Peyronie's disease, the VA examiner stated that there was no record of painful erection, penile plaques, or curved erections noted in the service treatment records which was common with this condition. The VA examiner cited to the Mayo Clinic's website discussing the symptoms and causes of Peyronie's disease to support his conclusion. Therefore, a nexus was not established between the Veteran's ED and his Peyronie's disease. After consideration of the entire record and the relevant law, the Board finds that the Veteran's Peyronie's disease is not related to service or to a service-connected disability, and service connection is not established. The Board acknowledges the Veteran has a confirmed diagnosis of a Peyronie's disease, however, there were no indications that it began during his military service as he was not diagnosed with Peyronie's disease, nor did he have symptoms of such, during his military service or for many years after. Therefore, the Board finds that direct service connection is denied. The Veteran has not presented any medical evidence to support a finding of direct service connection. Furthermore, the overall objective medical evidence of record as well as the VA examination opinion did not support an etiological link between the Peyronie's disease and his service-connected disability, specifically his ED. This opinion is against the Veteran's theory of secondary service connection secondary service and is uncontroverted. The Board accords great probative weight to the September 2021 VA examiner's opinion because it was based on an accurate factual premise, and offered clear conclusions with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, the VA examiner reviewed service and post-service treatment and cited to a credible medical resource in reaching the negative nexus opinion. The Board notes the only evidence of record in support of the Veteran's claims consists of his own lay statements. The Board acknowledges the Veteran's belief that his service-connected ED led to his Peyronie's disease. To this end, he is considered competent to report the observable manifestations of his claimed disability and even when they began. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, he lacks the medical training or expertise to determine that ED caused Peyronie's disease. A medical opinion was obtained to address that complex medical question; but, as discussed, the examiner explained why it was less likely than not that the ED had not caused the Peyronie's disease. Likewise, while a Veteran may describe the onset of an observable condition, the Veteran has not suggested that the Peyronie's disease onset during service. Accordingly, service connection for Peyronie's disease, to include as secondary to a service-connected disability, is denied. 2. Service connection for residuals of squamous cell carcinoma The Veteran's service treatment records do not reference any complaints of, treatment for, or any diagnoses that can be linked with squamous cell carcinoma. However, the Veteran's service file reflected treatment for a complaint regarding a lump on his neck behind the left ear. It was argued in the JMR that a medical opinion was needed to determine whether the neck lump that was noted during service marked the onset of the squamous cell carcinoma. Post-service medical records reflect that the Veteran was diagnosed with squamous cell carcinoma of the right lateral oropharynx in September 2013, seven years after he separated from service. There is no evidence of squamous cell carcinoma manifesting to a compensable degree within one year of discharge from active duty. Pursuant to the July 2021 Board remand, a VA medical opinion as to whether there is a relationship between the squamous cell carcinoma of the right lateral oropharynx and the lump behind the Veteran's left ear in service was obtained. In September 2021, following physical examination and a review of the evidence of record, the VA examiner concluded that the Veteran's squamous cell carcinoma of the right lateral oropharynx was not at least as likely as not incurred in or caused by the complaint and treatment of the lump on the neck behind the left ear during service. The VA examiner noted that the March 2000 service treatment record indicated that the Veteran was treated for a lump on the left side of the neck behind the ear and that the left ear was cut while shaving which "developed an infection." The examination of the lymph node under the ear was mobile and tender and the Veteran was instructed to follow up if the node increased in size or new nodes appeared but there was no evidence of follow up visits. The VA examiner cited to medical literature that "swollen lymph nodes usually indicate that the body is fighting off illness" and that there was no evidence that the Veteran complained of "immobile, erythematous, or enlarging lymph node(s), fever, or night sweats which would indicate signs of malignancy." The opinion further indicated that the post-service medical records reflected that the Veteran was diagnosed with squamous cell carcinoma of the right lateral oropharynx in September 2013. It is not disputed that the Veteran had squamous cell carcinoma, but no competent evidence has been submitted to suggest that it onset during his military service as he was not diagnosed with squamous cell carcinoma during service, and there is no suggestion of any symptom manifestation during that time that might be considered diagnostic of squamous cell carcinoma. Therefore, service connection is denied. To that end, the Board is aware that the September 2021 VA examiner indicated he was unable to opine without speculation that the lump on his neck in service was related to his squamous cell carcinoma. However, the VA examiner took time to explain his conclusion, and reading between the lines, the VA examiner was simply saying that there was no evidence in the record to support a grant of service connection. It is acknowledged that when an examiner is asked to render an etiology opinion and determines that he cannot do so without resorting to speculation, the Board may not rely on such an opinion unless the record in its entirety-including the examination and the opinion itself-shows that "the examiner [did] not invoke[ ] the phrase 'without resort to mere speculation 'as a substitute for the full consideration of all pertinent and available medical facts." Jones v. Shinseki, 23 Vet. App. 382 (2010). In other words, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id. at 8. "Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculation, the examiner must explain the basis for such an opinion or the basis must be otherwise apparent in the Board's review of the evidence." Id. at 9. "In certain cases, no medical expert can assess the likelihood that a condition was due to an in-service event or disease, because information that could only have been collected in service, or soon thereafter, is missing, or the time for obtaining other information has passed." Id. at 10. The Veteran has not presented any medical evidence to support a finding of service connection. The only evidence of record in support of the Veteran claim consists of his own lay statements. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of residuals of squamous cell carcinoma at issue here is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana at 428; Jandreau at 1372. In sum, the Board finds that all available, pertinent medical information was presented to, and considered by, the VA examiner. The VA examiner conducted a thorough review of the evidence of record, to include the Veteran's lay statements regarding his military service and current disability. Because the evidence does not support a nexus between the Veteran's residuals of squamous cell carcinoma and his military service, the Board is unable to grant the claim. 3. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is related to his noise exposure during his military service. He has also suggested that treatment for his squamous cell carcinoma may have aggravated his hearing loss disability. The current evidence shows that the Veteran has bilateral hearing loss of sufficient severity to qualify as a disability for VA purposes. The evidence also shows that during his period of service, the Veteran was assigned as a munitions inspector and was "Routinely Exposed to Hazardous Noise." The remaining element necessary for a grant of service connection is a medical link between the Veteran's in-service noise exposure and his current bilateral hearing loss. For reasons discussed below, the Board finds that the evidence does not persuasively favors such a link. Therefore, the appeal must be denied. Evidence against the finding of a nexus includes a March 2007 rating decision that reflects the Veteran uncertainty as to whether he had hearing loss when he separated from service. The rating decision reports that audiological testing upon discharge revealed normal hearing, and there was no pathology at that time to render a diagnosis of hearing loss. Post-service medical records are also unsupportive of a nexus link in that they do not document any complaints of/treatment for bilateral hearing loss. The Veteran has not submitted any lay statements, nor do his post-service medical records suggest, that he experienced a continuity of symptomatology of bilateral hearing loss from the time of service (or soon thereafter) until the present. Rather, records dated as late as October 2012 reflect statements by the Veteran that he had no hearing difficulties and no ear pain. An October 2013 audiogram appears to be the first record documenting sensorineural hearing loss. The audiological examination, conducted in relation to the Veteran's cancer treatment, reflects normal right ear hearing thresholds except mild hearing loss at 8000 Hertz, and normal left ear hearing thresholds except moderate hearing loss at 6000 Hertz and 8000 Hertz. The Veteran was assessed at that time with bilateral hearing loss, tinnitus secondary to the hearing loss, and squamous cell carcinoma. He was told that his cancer treatment with platinum-based chemotherapy agents had a risk of causing additional hearing loss. To that end, the Board finds that service connection on a secondary theory of entitlement is not warranted in this case. Since the underlying disorder of residuals of squamous cell carcinoma is not service-connected, the Veteran's claim for secondary service connection on this basis is without legal merit and must be denied due to the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Additional evidence against the Veteran's claim is a July 2017 audiological examination report in which a VA audiologist ultimately opined that it was less likely than not that the Veteran's current hearing loss was due to military noise exposure. The report reveals that the audiologist reviewed the Veteran's claims file, obtained a medical history from the Veteran, and conducted an audiological evaluation. He cited in the "evidence" section of the report his review of approximately nine audiograms. One of the audiograms was undated but believed to be the Veteran's service entrance audiogram. The remaining audiograms were dated in 1980, 1981, 1989, 1990, 1991, 1993, 1997, 2001, 2003 and 2006 (erroneously written as "2016" in the report). They all reflect normal hearing in all frequencies, except for a single entry in one record indicating left ear hearing loss ranging from 35 to 55 decibels at 6000 Hertz. The audiologist found the in-service audiograms to be particularly supportive of his medical opinion because they show a consistency of normal hearing during the Veteran's service. Furthermore, the audiologist cited to the audiogram from his examination in support of his opinion, stating that the July 2017 audiogram showed the Veteran had mixed hearing with abnormal tympanometry and reflexes that were more consistent with probable fluid behind the Veteran's TMs and/or ETD. The Board finds the July 2017 medical opinion not only be both credible and persuasive, but also uncontroverted. Although there is a current bilateral hearing loss disability for VA purposes and in-service noise exposure, there is no competent opinion linking his hearing loss to the noise exposure in service or secondarily to a service-connected disability. Further, there was no bilateral hearing loss disability shown within one year of his discharge from service, nor is there probative evidence of a continuity of symptomatology since service. It is noted that the previously Board decision denying service connection for bilateral hearing loss was vacated, but it is important to note that there was no fundamental disagreement with the Board's conclusion. That is, the JMR did not find any error in the Board's reasoning that direct service connection for bilateral hearing loss was not warranted. Rather, the issue was remanded as intertwined with the claim for service connection for squamous cell carcinoma, as it was argued that should the squamous cell carcinoma claim be granted, the treatment for it might be shown to have aggravated the hearing loss disability. However, as noted, service connection for squamous cell carcinoma was denied, and as such, there is nothing to discuss here. Because the overall evidence does not persuasively favor the Veteran's claim, service connection for bilateral hearing loss is denied. Increased Rating The Veteran's service-connected allergic rhinitis is rated pursuant to 38 C.F.R. § 4.97, DC 6522. In order to be assigned a compensable disability rating of 10 percent, the evidence must show that the Veteran's allergic rhinitis is without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. Because DC 6522 in VA's rating schedule pertains specifically to ratings for allergic rhinitis, the Veteran's disability will not be rated by analogy to any of the other diagnostic codes. See Copeland v. McDonald, 27 Vet. App. 333, at 337 (2015). As stated above, the November 2021 Rating Decision granted an increased disability rating for allergic rhinitis of 10 percent, effective September 16, 2021. Prior to September 16, 2021, a review of the claims file reveals an absence of complaints of/treatment for the Veteran's allergic rhinitis, other than the use of medications related to the control of allergy symptoms. The post-service treatment records during this period does not reflect polyps or obstructions. Specifically, the only pertinent and probative evidence in the record on appeal is an August 2017 Sinusitis/Rhinitis DBQ examination report that reflects the Veteran was found not to have nasal polyps, nor was he found to have either greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. Considering the lack of supportive evidence indicating that the Veteran's allergic rhinitis meets any of the criteria set forth in DC 6522, the Veteran's request for the assignment of a compensable disability rating prior to September 16, 2021, is denied. From September 16, 2021, the evidence supports a 10 percent rating for Veteran's allergic rhinitis, as the September 2021 VA examination showed greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis. However, no medical records during this period of appeal indicated the required criteria for an increase in excess of 10 percent. Here, an increase of 30 percent under DC 6522 requires the presence of nasal polyps. There is no evidence to indicate that the Veteran has been diagnosed with nasal polyps at any time during the course of the appeal. Therefore, a rating in excess of 10 percent for allergic rhinitis from September 16, 2021, is denied. Accordingly, a compensable disability rating prior to September 16, 2021, and in excess of 10 percent thereafter for allergic rhinitis is denied. In the JMR, it was argued that the Court in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017), in discussing when an exam is warranted for a condition that may have active and inactive stages, stated that "the frequency, duration, and severity of flares are necessary considerations when determining whether VA must attempt to schedule an examination during a flare." In this regard, while the evidence of record notes that Appellant's allergic rhinitis condition is "perennial", it also notes that Appellant had "seasonal allergies worse in summer outdoors. It was suggested that the Board consider whether to order a VA examination. The Board concluded that an examination was warranted, and as noted one was provided in September 2021. It is noted that the Veteran's two examinations were held during summer and in the early fall, thereby addressing the concern of the JMR that the symptoms were worse during the summer time. Moreover, the examiner in 2021 was specifically asked whether the Veteran's allergic rhinitis was in an active stage at the time of the September 2021 examination, to which she indicated that there were objective findings of allergic rhinitis noted during the examination as swollen turbinates were noted bilaterally due to rhinitis. As such, the examination was conducted during an active stage of the allergic rhinitis, but the criteria for a rating in excess of 10 percent were not shown. Accordingly, a higher rating for the Veteran's allergic rhinitis was not shown, and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.