Citation Nr: A22003131 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 200528-88558 DATE: February 23, 2022 ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for a lumbar spine disorder is denied. Service connection for erectile dysfunction as secondary to type 2 diabetes is denied. REMANDED Service connection for coronary artery disease is remanded. Service connection for diabetes mellitus type 2 is remanded. Service connection for hypertension is remanded. Service connection for kidney nodules is remanded. Service connection for liver nodules is remanded. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability for VA purposes. 2. The weight of the persuasive evidence is against finding that the Veteran's lumbar spine disorder was incurred during or is otherwise related to active service; and there is no evidence of lumbar spine arthritis manifest to a compensable degree within one year following discharge from active service. 3. The weight of the persuasive evidence shows that the etiology of the Veteran's erectile dysfunction is diabetes; the Veteran's diabetes is not service connected. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(b). 3. The criteria for service connection for erectile dysfunction as secondary to diabetes have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to September 1987. This appeal comes to the Board from two separate decisions. In September 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2019 decision concerning the issues of service connection for bilateral hearing loss and chronic lower back pain. In November 2019, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2019 decision. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. The Board may only consider the evidence of record at the time of the July 2019 decision. 38 C.F.R. § 20.301. In October 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues of service connection for coronary artery disease, diabetes, kidney nodules, liver nodules, erectile dysfunction, and high blood pressure most recently addressed in a July 2019 rating decision. In November 2019, the AOJ issued the supplemental claim decision on appeal, which determined that new and relevant evidence had not been received to readjudicate the decision. Notwithstanding, a review of the reasons and bases suggest that the AOJ adjudicated the claims on the merits. Accordingly, the Board considers this an implicit finding of new and relevant evidence and a binding favorable finding. Thus, it will proceed to adjudicate the appeal on the merits. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2019 AOJ decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period when new evidence was not allowed. As the Board is deciding the claims of service connection for bilateral hearing loss, lumbar spine disorder, and erectile dysfunction, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As to the issues remanded, this additional evidence will be considered by the RO in the adjudication of those claims. 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. §§ 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, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection for a bilateral hearing loss disability The November 2019 HLR decision denied service connection for bilateral hearing loss. The AOJ favorably found that the Veteran's military occupation was in intermediate avionics maintenance which indicates a high probability of military noise exposure. The Veteran appealed this decision to the Board. He contends that he has hearing impairment related to military noise exposure. For VA purposes, impaired hearing will be considered 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. Service treatment records include audiometric findings on examinations for enlistment and discharge as well as various audiograms as part of hearing conservation data. On review, none of these evaluations show hearing loss for VA purposes or a significant threshold shift (20 dB or greater). There is also no evidence of a sensorineural hearing loss disability manifested to a compensable degree within one year following discharge from active service. The Veteran underwent a VA hearing loss examination in May 2019. On audiometric evaluation, puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were: 5, 10, 5, 30, and 30 (right ear); and 5, 5, 5, 15, and 35 (left ear). Speech discrimination scores pursuant to the Maryland CNC word list were 100 percent in both ears. Diagnosis was sensorineural hearing loss in the right ear in the frequency range of 500-4000 Hertz and sensorineural hearing loss in the left ear in the frequency range of 6000 Hertz or higher frequencies. The Board acknowledges the examiner's diagnosis of sensorineural hearing loss in both ears. On review, however, evidence of record does not establish the existence of a bilateral hearing loss disability under the clear requirements of 38 C.F.R. § 3.385. In Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the United States Court of Appeals for Veterans Claims (Court) specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. As the Veteran does not have a current hearing loss disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim in June 2018, service connection cannot be established for bilateral hearing loss. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In making these determinations, the Board acknowledges the Veteran's contentions. He has not, however, shown that he has the medical training, experience, or expertise to be competent to diagnose hearing loss for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's lay statements do not outweigh the objective audiometric findings of record. Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether service connection for bilateral hearing loss is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b), Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied. Service connection for a lumbar spine disorder In June 2018, the Veteran claimed service connection for chronic back pain due to a poor landing during a tactical exercise. In an associated statement, he also reported that he was struck by lightning in 1985 and has struggled with skeletal issues since that point. In November 2019, an HLR informal conference was held. At that time, the Veteran again stated that he had a back accident in training with continued problems. He also asserted he has back problems because of his hip, knee, and ankle conditions. In the November 2019 HLR decision, VA denied service connection for lumbar spine degenerative disc disease, claimed as chronic back pain. The AOJ favorably found evidence of current disability (lumbar spine degenerative disc disease). The Veteran appealed this decision to the Board. In the April 2021 informal hearing presentation, the representative argued that service treatment records show he injured his back in a 1985 motor vehicle accident and had back sprain. The representative further argued that the Veteran's statement that his injury was the cause of his current disability should satisfy the nexus requirement. On report of medical history completed in March 1983, the Veteran denied recurrent back pain although he did report seeing a chiropractor for back treatment. On the associated medical examination, the Veteran's spine was reported as normal on clinical evaluation. At that time, the Veteran also underwent an orthopedic consult which notes that one year prior he had a motor vehicle accident with onset approximately six months later of pain and headaches. He had 6 adjustments from a chiropractor with full relief of symptoms. Following examination, impression was normal back. Service records do not document additional complaints or findings related to the back. On discharge examination in August 1987, the Veteran's spine was again reported as normal on clinical evaluation. In December 2006, the Veteran underwent a lumbar spine MRI. Clinical history notes a March 2006 motor vehicle accident with back and neck pain. There was no evidence for acute fracture of the lumbar spine. There was concentric disk bulge with central annular tear at L4-L5 causing borderline canal stenosis, with the remaining levels being unremarkable. VA records dated in November 2014 note that lumbar spine x-rays showed rather mild lumbar spine degenerative disease not overly unusual for age. Private records dated in September 2015 indicate the Veteran was involved in a motor vehicle accident and had pain to his mid and lower back. X-rays were negative for acute abnormality but there was evidence of degenerative changes. A February 2017 statement from a private chiropractor (Dr. K.W.) notes complaints in the neck, back, and shoulders related to a September 2015 motor vehicle accident. The Veteran also reported that he had sustained various other injuries during service and that these had never completely resolved. The chiropractor opined that the Veteran had sustained sprain injuries as a direct result of the auto accident impact and a series of chiropractic adjusting procedures was recommended. The Veteran underwent a VA back examination in May 2019. He recalled being hit by lightning and hurting his back but does not remember being treated for it. The examiner reviewed imaging studies and indicated a diagnosis of degenerative lumbar disc disease. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. He noted a thorough review of available medical records including service treatment records and indicated he could not find any evidence of lumbar pain chronicity from service. As set forth, the Veteran underwent an enlistment examination in March 1983, approximately 6 months prior to his entry on active duty. While he reported some previous back issues, he denied current problems. He underwent an orthopedics consult which indicated a normal back examination. A back condition was thus not noted at enlistment and the Veteran is presumed sound. See 38 C.F.R. § 3.304(b). The Board acknowledges the representative's argument that the Veteran was seen for back strain following a motor vehicle accident in 1985. Review of service treatment records, however, shows that the accident was prior to enlistment and service treatment records do not otherwise reflect complaints or findings of back injury or problems during active duty. Notwithstanding, the Veteran is competent to report that he suffered in-service back injuries. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Even assuming the credibility of this information, any back injury appears to have been acute and resolved because there is no evidence of any chronic back issues during service and on separation, the Veteran's spine was normal. Additionally, there is no evidence of lumbar spine arthritis manifested to a compensable degree within one year following discharge from active service. Regarding whether the current lumbar spine disorder is related to active service, the VA examiner provided a negative opinion. The examiner reviewed the evidence of record and provided rationale for his opinion. The Board finds this opinion probative as to nexus, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is further noted that x-ray evidence suggests findings typical for the Veteran's age. The Veteran's contentions are acknowledged but he has not shown that he has the medical training, experience, or expertise to be competent to provide a medical etiology opinion. See Jandreau. The Veteran's unsupported lay assertions do not establish in-service onset or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010) (holding that a conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to establish medical etiology or nexus). Further, the persuasive evidence weighs against continuity of symptoms given the lack of findings at separation or for many years thereafter. The evidence also indicates two post-service motor vehicle accidents with complaints of back injury related to same. To the extent the Veteran asserts entitlement to secondary service connection as related to his hip, knee, or ankle conditions, the Board observes that he is not currently service connected for any of those disorders. There is no basis for an award based on secondary service connection. Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether service connection for a lumbar spine disorder is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Lynch. The claim is denied. Service connection for erectile dysfunction In June 2018, the Veteran claimed service connection for erectile dysfunction as secondary to diabetes. In the November 2019 supplemental claim decision, VA favorably found that the Veteran had been diagnosed with erectile dysfunction but continued to deny the claim. The Veteran appealed this decision to the Board. In this case, the only theory of service connection raised is secondary service connection. The Veteran, his representative, and the record raise no other theory of service connection. As a result, the Board will limit its analysis to the theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). The Veteran underwent a VA male reproductive organ examination in May 2019. He reported having erectile dysfunction a few years after being put on metformin for diabetes. The examiner stated that the etiology of the Veteran's erectile dysfunction is diabetes. The Veteran is not currently service-connected for diabetes and thus, there is no basis for secondary service connection. See 38 C.F.R. § 3.310. The evidence persuasively weighs against the claim and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Lynch. The claim is denied. REASONS FOR REMAND Entitlement to service connection for coronary artery disease, diabetes, hypertension, kidney nodules, and liver nodules In the November 2019 supplemental claim decision, VA denied service connection for the listed issues. The AOJ favorably found current diagnoses of coronary artery disease, diabetes, and hypertension. No favorable findings were made regarding the claims for kidney and liver nodules. The Veteran appealed this decision to the Board. As to all issues remanded, the Veteran contends they are related to in-service toxic exposures. In a statement submitted with his June 2018 claim, he asserts exposures to various chemicals such as solvents and degreasers. In an August 2018 statement, he reports that these chemicals, to include Agent Orange, were transported to his base at Beaufort, South Carolina so they could be burned. Service personnel records confirm the Veteran was stationed in Beaufort. As to the alleged Agent Orange exposure, the November 2019 supplemental claim decision acknowledges the Veteran's reports of Agent Orange exposure while stationed at Beaufort, South Carolina but notes "[t]he Department of Defense [DoD] has provided a list of sites that agent orange was tested, stored and disposed of and the location you have mentioned is not one of the sites that is listed." The Board is unable to locate the referenced DoD document. Further, there is no indication that the AOJ sent an email with the dates, locations, and circumstances of the claimed herbicide exposure to Compensation Service and requested a review of the DoD's inventory of herbicide operations to determine whether herbicides were used as claimed. A remand is needed to correct this pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Conduct appropriate development to verify herbicide exposure on a factual basis in locations other than Vietnam, Korean DMZ, or Thailand. This should include sending an email with the dates, location, and circumstances of the claimed exposure (see Veteran's statement received in August 2018) and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed. The AOJ should also associate with the claims folder a copy of the DoD document referenced in the November 2019 rating decision. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.