HEARING LOSS

Summary

The Veteran, who served in the United States Navy from April 1967 to March 1969, appeals the denial of service connection for multiple conditions, including bilateral hearing loss, hypertension, heart disorders, erectile dysfunction, headaches, visual disturbances, skin disorders (basal cell carcinoma and actinic keratosis), and respiratory disorders (asthma and COPD). The Veteran also claimed some conditions as secondary to service-connected PTSD. The Board found that the Veteran did not have a current diagnosis of bilateral hearing loss for VA purposes, as his 2016 audiological results did not meet the criteria for VA compensation, and he failed to attend subsequent scheduled examinations. For hypertension, heart disorders, erectile dysfunction, headaches, visual disturbances, skin disorders, and respiratory disorders, the Board found that the evidence persuasively weighed against service connection. The Veteran, who has medical training as a physician assistant, provided generalized and speculative testimony regarding the nexus between his current conditions and his service or PTSD, which lacked probative value. The Board noted that the Veteran failed to attend multiple scheduled examinations for these claims, necessitating adjudication based on the existing record. The Board found no positive probative nexus opinions supporting service connection for any of the claimed conditions. Consequently, service connection for all claimed conditions was denied.

Rationale

No current diagnosis of bilateral hearing loss for VA purposes; Failed to attend scheduled examinations; Veteran's testimony regarding worsening hearing not competent for diagnosis

Full Decision Text

Citation Nr: 24008172
Decision Date: 02/16/24	Archive Date: 02/16/24

DOCKET NO. 17-35 834
DATE: February 16, 2024

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for hypertension prior to August 10, 2022, to include as secondary to service-connected disabilities, is denied.

Service connection for a heart disorder (heart arrhythmia and ablations), to include as secondary to service-connected disabilities, is denied.

Service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is denied.

Service connection for headaches, to include as secondary to service-connected disabilities, is denied.

Service connection for a visual disorder, to include as secondary to service-connected disabilities, is denied.

Service connection for a skin disorder (basal cell carcinoma and actinic keratosis) is denied.

Service connection for a respiratory disorder (asthma and chronic obstructive pulmonary disease (COPD)) is denied.

FINDINGS OF FACT

1. The Veteran does not have bilateral hearing loss for VA compensation purposes.

2. The evidence of record persuasively weighs against finding that the Veteran's current hypertension began during active service or is otherwise related to an in-service injury or disease and is not secondary to any service-connected disability.

3. The evidence of record persuasively weighs against finding that the Veteran's current heart disorders (ablations and arrhythmias) began during active service or are otherwise related to an in-service injury or disease and are not secondary to any service-connected disability.

4. The evidence of record persuasively weighs against finding that the Veteran's current erectile dysfunction began during active service or is otherwise related to an in-service injury or disease and is not secondary to any service-connected disability.

5. The evidence of record persuasively weighs against finding that the Veteran's current headaches began during active service or are otherwise related to an in-service injury or disease and are not secondary to any service-connected disability.

6. The evidence of record persuasively weighs against finding that the Veteran's current visual disturbances began during active service or are otherwise related to an in-service injury or disease and are not secondary to any service-connected disability.

7. The evidence of record persuasively weighs against finding that the Veteran's current skin disorders (basal cell carcinoma and actinic keratosis) began during active service or are otherwise related to an in-service injury or disease.

8. The evidence of record persuasively weighs against finding that the Veteran's current respiratory disorders (asthma/COPD) began during active service or are otherwise related to an in-service injury or disease and are not secondary to any service-connected disabilities.

CONCLUSIONS OF LAW

1. . The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385.

2. The criteria for service connection for hypertension prior to August 10, 2022 are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

3. The criteria for service connection for heart disorders (ablations and arrythmias) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

4. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

5. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

6. The criteria for service connection for a visual disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

7. The criteria for service connection for a skin disorder (basal cell carcinoma and actinic keratosis) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

8.
. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

6. The criteria for service connection for a visual disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

7. The criteria for service connection for a skin disorder (basal cell carcinoma and actinic keratosis) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for service connection for a respiratory disorder (asthma/COPD) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Navy from April 1967 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in July 2021; a transcript is of record. These matters were subsequently remanded by the Board in February 2022, March 2023, and November 2023 for additional development to include obtaining examinations/opinions. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Specifically, the RO attempted to schedule the Veteran for additional examinations to address his claims on appeal. See 1/5/2024, Exam Request. The claims file reflects the Veteran did not attend his examinations. To date, the Veteran has not provided good cause for his absences for any of the previously scheduled examinations. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

Additionally, the Board acknowledges in its prior November 2023 remand that medical opinions should be obtained if possible to address the Veteran's claims. By not obtaining medical opinions, the Board finds that it was not feasible to address the Veteran's claims without examinations. 

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there generally must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995).

Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a).

A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 

The Federal Circuit has held that "[l]ay evidence can be competent and
3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a).

A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

The Veteran is competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

1. Entitlement to service connection for bilateral hearing loss

The Veteran asserts service connection for bilateral hearing loss, to include as due to noise exposure in service from the USS Sanctuary. 

In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss 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. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303.

At the May 2016 examination, he did not have hearing loss for VA purposes. See 5/18/2016, C&P Exam. In pertinent part, his hearing results were as follows:

	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz	6000 Hz	8000 Hz

Right	10	10	15	15	25	30	55

Left	15	15	15	10	30	40	50

His right ear average was 16 Hz. His left ear average was 18 Hz. His speech discrimination score (Maryland CNC word list) was 100 percent for both ears. These audiological results do not show a diagnosis of bilateral hearing loss for VA purposes per 38 C.F.R. § 3.385.

However, since that examination, he testified at a Board hearing in July 2021. He believes his hearing
 follows:

	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz	6000 Hz	8000 Hz

Right	10	10	15	15	25	30	55

Left	15	15	15	10	30	40	50

His right ear average was 16 Hz. His left ear average was 18 Hz. His speech discrimination score (Maryland CNC word list) was 100 percent for both ears. These audiological results do not show a diagnosis of bilateral hearing loss for VA purposes per 38 C.F.R. § 3.385.

However, since that examination, he testified at a Board hearing in July 2021. He believes his hearing may be worse than what was reported at the prior examination and contends that he now has a hearing loss for VA purposes disability. The Veteran is competent to report worsening hearing. However, he is not competent to determine he has hearing loss for VA purposes. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service. To date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

The Board acknowledges the Veteran's belief that he has bilateral hearing loss; however, as noted above, he is not competent to report that he has a diagnosis of bilateral hearing loss for VA purposes as it requires audiological testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377n.4 (Fed. Cir. 2007). As such evidence is not competent, the Board does the Veteran's statements in this regard to be probative of the matter on appeal and so they lack weight.

After review of the competent and probative evidence, the Board finds that service connection for bilateral hearing loss is not warranted as the Veteran does not have hearing loss for VA purposes. The Board acknowledges the Veteran's belief that he has bilateral hearing loss. However, he did not have hearing loss for VA purposes at the 2016 examination, nor has he attended any subsequently scheduled examination as per his testimony that his hearing had worsened. In particular, the 2016 examination did not show speech discrimination scores less than 94 percent, auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz 40 decibels or greater; and/or his auditory thresholds for at least three of these frequencies were not 26 decibels or greater. As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable. Therefore, service connection for bilateral hearing loss is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

2. Entitlement to service connection for hypertension prior to August 10, 2022

The Veteran asserts service connection for hypertension prior to August 10, 2022, to include as secondary to his service-connected PTSD. After the last Board remand, a January 2023 rating decision granted service connection for hypertension associated with herbicide exposure, effective August 10, 2022, the effective date of the PACT Act. However, this matter was pending at the time of the enactment of the PACT Act as it stems from a June 2016 claim. As such, the Board will adjudicate service connection for the period prior to August 10, 2022.

The Veteran has a current diagnosis of hypertension, to include as reported in the May 2016 examination. See 5/18/2016, C&P Exam. As such, the first element of service connection is met. 

The Veteran testified at a Board hearing regarding his disabilities. He believes that his disabilities are secondary to his service-connected PTSD. The Veteran argued his hypertension is aggravated by his PTSD. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, his assertions regarding his disabilities and his belief that they are due to his PTSD are too generalized and speculative to have probative value. The Veteran thought his hypertension could be aggravated by his
 such, the first element of service connection is met. 

The Veteran testified at a Board hearing regarding his disabilities. He believes that his disabilities are secondary to his service-connected PTSD. The Veteran argued his hypertension is aggravated by his PTSD. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, his assertions regarding his disabilities and his belief that they are due to his PTSD are too generalized and speculative to have probative value. The Veteran thought his hypertension could be aggravated by his PTSD. Therefore, the Board finds the Veteran's statements to be conclusory, speculative, and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for hypertension. There is no indication from the claims file, nor has the Veteran asserted, that his hypertension began during service, or manifested within one year after exiting service and continued. VA treatment records tend to show the Veteran's hypertension was diagnosed approximately in 2012 - years after the Veteran's exit from active duty. See 3/22/2016, CAPRI. 

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's hypertension. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his service-connected PTSD may aggravate his hypertension, but the Board has found his testimony and opinion to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for hypertension, to include as secondary to service-connected disabilities, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

3. Entitlement to service connection for a heart disorder

The Veteran asserts service connection for a heart disorder, to include as secondary to his service-connected PTSD. 

The Veteran has current diagnoses of heart arrhythmia and ablations, to include as reported in his May 2016 VA examination. See 5/18/2016, C&P Exam. As such, the first element of service connection is met.

The Veteran testified at a Board hearing regarding his disabilities. He believes that his disabilities are secondary to his service-connected PTSD. Specifically, he asserts his increased stress from his PTSD has caused his heart arrythmias and ablations. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, he assertions regarding his disabilities and his belief that his heart disorders are due to service or secondary to any service-connected disability are too generalized and speculative to have probative value. Therefore, the Board finds the Veteran's statements to be conclusory, speculative, and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and
 Cir. 2007). However, while the Veteran has medical training, he assertions regarding his disabilities and his belief that his heart disorders are due to service or secondary to any service-connected disability are too generalized and speculative to have probative value. Therefore, the Board finds the Veteran's statements to be conclusory, speculative, and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for a heart disorder (heart arrhythmia and ablations). There is no indication from the claims file, nor has the Veteran asserted, that his heart arrhythmia and ablations began during service, or manifested within one year after exiting service and continued. Testimony at the Board hearing indicated his heart disorders were diagnosed approximately in the mid-2000s. See 7/2/2021, Hearing Transcript.

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's heart disorders. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorders may be due to his service-connected disabilities, but the Board has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for heart disorders, to include as secondary to service-connected disabilities, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

4. Entitlement to service connection for erectile dysfunction

The Veteran asserts service connection for erectile dysfunction, to include as secondary to his service-connected PTSD.  

The Veteran has a current diagnosis of erectile dysfunction, to include as reported in VA treatment records. See 3/22/2016, CAPRI. As such, the first element of service connection is met.

The Veteran testified at a Board hearing regarding his disabilities. For his erectile dysfunction, he contends his PTSD medication causes his disability. He began noticing problems around 2003. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, he assertions regarding his disabilities and his belief that they are due to his PTSD and medication are too generalized and speculative to have probative value. Therefore, the Board finds the Veteran's statements to be conclusory and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in
2).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for erectile dysfunction. There is no indication from the claims file, nor has the Veteran asserted, that his erectile dysfunction began during service, or manifested within one year after exiting service and continued. Testimony at the Board hearing indicated his erectile dysfunction began in the early to mid-2000s. See 7/2/2021, Hearing Transcript.

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's erectile dysfunction. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorders may be due to his service-connected disabilities, but the Board has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

5. Entitlement to service connection for headaches

The Veteran asserts service connection for headaches, to include as secondary to his service-connected PTSD. 

The Veteran reports he has headaches. He is competent to report pain or discomfort in the head or face area. As such, the first element of service connection is met. 

The Veteran testified at a Board hearing regarding his disabilities. Concerning his headaches, he stated he has stress headaches due to PTSD. He did not testify that his headaches began during service. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, he assertions regarding his disabilities and his belief that they are due to his PTSD are too generalized and speculative to have probative value. Therefore, the Board finds the Veteran's statements to be conclusory and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for headaches. There is no indication from the claims file, nor has the Veteran asserted, that his headaches began during service, or manifested within one year after exiting service and continued. Testimony at the Board hearing indicated the Veteran did not have headaches that initially began during service. Rather, he only asserted they were due to his PTSD. See 7/2/2021, Hearing Transcript.

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's headaches. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by
 in approximate balance nor nearly equal) for service connection for headaches. There is no indication from the claims file, nor has the Veteran asserted, that his headaches began during service, or manifested within one year after exiting service and continued. Testimony at the Board hearing indicated the Veteran did not have headaches that initially began during service. Rather, he only asserted they were due to his PTSD. See 7/2/2021, Hearing Transcript.

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's headaches. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorder may be due to his service-connected disabilities, but the Board has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for headaches, to include as secondary to service-connected disabilities, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

6. Entitlement to service connection for a visual disorder

The Veteran asserts service connection for a visual disorder, to include as due to his service-connected PTSD. 

The Veteran testified at the Board hearing that he has visual disturbances where his vision flickers. The is competent to report flickering and visual disturbances. As such, the Board finds the first element of service connection is met. 

The Veteran testified at a Board hearing regarding his visual disturbances. At the hearing, the Veteran explained that he began noticing the disturbances in the past few months (the hearing was held in July 2021). He asserted his visual field flickers which he believes is due to panic attacks from his service-connected PTSD. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, he assertions regarding his disabilities and his belief that they are due to his PTSD are too generalized and speculative to have probative value. Therefore, the Board finds the Veteran's statements to be conclusory and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for visual disturbances. There is no indication from the claims file, nor has the Veteran asserted, that his for visual disturbances began during service, or manifested within one year after exiting service and continued. Testimony at the Board hearing indicated the Veteran's for visual disturbances began in 2020 or 2021. See 7/2/2021, Hearing Transcript.

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's for visual disturbances. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorder may be due to his service-connected disabilities, but the Board has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for visual disturbances, to include
 for visual disturbances. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorder may be due to his service-connected disabilities, but the Board has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for visual disturbances, to include as secondary to service-connected disabilities, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

7. Entitlement to service connection for a skin disorder

The Veteran asserts service connection for a skin disorder, to include basal cell carcinoma. The Veteran has had a diagnosis of basal cell carcinoma (BCC) and actinic keratosis during the period on appeal. See 3/22/2016, CAPRI. As such, the first element of service connection is met. 

The Veteran testified at a Board hearing regarding his skin disorder. He asserted that he frequently had severe sunburns during service in Vietnam. He had had surgery to remove his BCCs in approximately the mid-2010s. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, his assertions regarding his disabilities and his belief they are due to in-service sunburns are too generalized and speculative to have probative value. For example, when asked if it was his belief that his BCCs were due to sunburns during service, he responded "yeah, I guess. It's hard for me to relate it that way, but yeah, that could be." Therefore, the Board finds the Veteran's statements to be conclusory and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for skin disorders. There is no indication from the claims file, nor has the Veteran asserted, that his for skin disorders began during service, or manifested within one year after exiting service and continued. Testimony at the Board hearing indicated the Veteran's skin disorders were diagnosed in the mid-2010s. See 7/2/2021, Hearing Transcript.

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's for skin disorders. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorder may be due to his sunburns during service, but the Board has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for skin disorders, to include as due to sunburns during service, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

8. Entitlement to service connection for a respiratory disorder

The Veteran asserts service connection for a respiratory disorder. The Veteran has a diagnosis of chronic obstructive asthma
 has found his testimony to be speculative without adequate rationale. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for skin disorders, to include as due to sunburns during service, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

8. Entitlement to service connection for a respiratory disorder

The Veteran asserts service connection for a respiratory disorder. The Veteran has a diagnosis of chronic obstructive asthma, to include as reported in VA treatment records. See 3/22/2016, CAPRI. As such, the first element of service connection is met.

A March 2022 VA memo indicated that the Veteran's military occupational specialty, hospital man, had minimal exposure to asbestos during service. See 3/1/2022, VA Memo. 

The Veteran testified at a Board hearing regarding his respiratory disorders. He has a diagnosis of asthma, and he believes he may have chronic obstructive pulmonary disease (COPD) as well, but he does not have a current diagnosis. He believes they are due to asbestos exposure while aboard the USS Sanctuary. The Veteran's asthma related symptoms began after service. The Board acknowledges the Veteran's contentions regarding his disabilities as well as his medical training as a physician assistant. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, while the Veteran has medical training, his assertions regarding his disabilities and his belief that they are due to his service, to include possible asbestos exposure, are too generalized and speculative to have probative value. Therefore, the Board finds the Veteran's statements to be conclusory and without adequate rationale and as such, have no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).

As discussed above, the Board remanded this issue in February 2022, March 2023, and November 2023, to attempt to schedule the Veteran for an examination to determine whether he had a disability that was related to his service or secondary to his service-connected disabilities. The Board acknowledges that no medical opinion has been obtained for the Veteran's claim. However, to date, the Veteran has not provided good cause for his absence. Therefore, this matter will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for respiratory disorders (COPD/asthma). There is no indication from the claims file, nor has the Veteran asserted, that his for disorders began during service, or manifested within one year after exiting service and continued. Rather, the Veteran's testimony indicated that he had asthma related symptoms that began after service. See 7/2/2021, Hearing Transcript. VA treatment records tend to show he was diagnosed with chronic obstructive asthma in February 2013. See 3/22/2016, CAPRI. 

Additionally, there is no positive probative nexus opinion for service connection of record that addresses the Veteran's for respiratory disorders. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). The Board recognizes the Veteran's belief that his disorders may be due to his asbestos, but the Board has found his testimony to be speculative without adequate rationale. Additionally, the VA memo indicated the Veteran had minimal exposure to asbestos during service. As such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for respiratory disorders, to include as due to asbestos exposure during service, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Morales, Counsel

The Board's decision in this case is binding only with respect to the instant
 such, the Veteran's statements in this regard have no probative value and lack weight. 

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for respiratory disorders, to include as due to asbestos exposure during service, is denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Morales, 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.