Citation Nr: 1617476	
Decision Date: 05/02/16    Archive Date: 05/13/16

DOCKET NO.  09-40 061	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma



THE ISSUES

1.  Entitlement to service connection for an upper respiratory disorder, for accrued benefit and substitution purposes.

2.  Entitlement to service connection for hypertension, for accrued benefit and substitution purposes.

3. Entitlement to service connection for erectile dysfunction (ED), for accrued benefit and substitution purposes.

4.  Entitlement to special monthly compensation for loss of use of a creative organ, for accrued benefit and substitution purposes.

5.  Entitlement to a rating in excess of 50 percent for dysthymic disorder, for accrued benefit and substitution purposes.

6.  Entitlement to a rating in excess of 40 percent for left eye blindness, for accrued benefit and substitution purposes.

7.  Entitlement to a rating in excess of 10 percent for sinusitis, for accrued benefit and substitution purposes. 



REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

The Veteran served on active duty from July 1966 to March 1968.  The Appellant is his surviving spouse.

The Veteran died in September 2014.  In November 2014, the Muskogee, Oklahoma Regional Office (RO) sent the Appellant notice which granted substitution pursuant to 38 U.S.C.A. § 5121A. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of November 2008, April 2009, and July 2009 by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). 

In August 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge.  In a May 2012 decision, the Board reopened the previously denied claims of entitlement to service connection for an upper respiratory disorder and hypertension, and remanded the issues on appeal for additional development.  

In January 2015, the Board dismissed the issues on appeal as the Veteran had died, but substitution by the Appellant, as noted, has been granted.


FINDINGS OF FACT

1.  A respiratory disorder including chronic obstructive pulmonary disease (COPD) is not attributable to service.  

2.  Hypertension was not manifest during service, within one year of service, and is not otherwise attributable to service.  

3.  ED is not attributable to service and is not etiologically related to a service-connected disability.

4.  The Veteran is not service-connected for ED or any other disorder resulting in loss of use of a creative organ.  

5.  At worse, the Veteran's dysthymia resulted in occupational and social impairment with reduced reliability and productivity, but did not result in occupational and social impairment, with deficiencies in most areas.

6.  The Veteran had blindness in his left eye with no more than light perception with correctable near and far vision in the right eye of 20/40 or better.

7.  The Veteran's sinusitis resulted in headaches, pain, and purulent discharge, but did not result in surgery.


CONCLUSIONS OF LAW

1.  A respiratory disorder including COPD was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2015).

2.  Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2015).  

3.  ED was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015).

4.  The criteria for entitlement to special monthly compensation based on loss of use of a creative organ are not met.  38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. §§ 3.102, 3.350(a) (2015). 

5.  The criteria for a rating in excess of 50 percent for dysthymia are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9433 (2015).

6.  The criteria for a rating in excess of 40 percent for left eye blindness are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21 (2015), 4.75, 4.83a, 4.84a, Diagnostic Codes 6027, 6028, 6061-6079, 6080, 6090 (2008). 

7.  The criteria for a 30 percent rating for sinusitis are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.31, 4.97, Diagnostic Code 6510 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters Regarding Accrued Benefits and Substitution

Accrued benefits are benefits to which a veteran was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.  For a claimant to prevail on an accrued benefits claim, the record must show that (i) the Appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death.  38 U.S.C.A. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). 

The substance of the survivor's claim is purely derivative from any benefit to which the Veteran might have been entitled at his death; that is, the survivor cannot receive any benefit that the Veteran could not have received.  Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). 

In considering the Appellant's claim for accrued benefits, generally, only evidence contained in the claims file at the time of the Veteran's death is evaluated.  38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.  However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the United States Court of Appeals for Veterans Claims (Court) held that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the file until after that date.  The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA, and reports of autopsy made by VA on date of death.  

The Veteran died in September 2014.  At the time of his death, the claims listed on the front page of this decision were pending.  The RO acknowledged that the Appellant, who is the Veteran's surviving spouse, filed a claim for accrued benefits within one year of the Veteran's death.  As the Appellant has standing to file a claim for accrued benefits, the Veteran had a claim pending at the time of death, and the claim for accrued benefits was filed within one year of the Veteran's death, the only issue is whether the Veteran would have prevailed on the claim if he had not died. 

The Board also notes that in promulgating the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), Congress created a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who, as the Veteran in the instant case, dies on or after October 10, 2008.  A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a).  If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 

There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitutions of claimants in the case of death of a claimant.  38 U.S.C.A. §§ 5121, 5121A.  When adjudicating the accrued benefits claims, only the evidence of record at the time of death may be considered as the basis for a determination on the merits of the claim, as noted.  However, when a properly qualified substitute claimant continues the pending claim in the footsteps of the Veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim.  A substitute claimant may submit additional evidence in support of the claim.  Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive.  Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants.  

Thus, it is to the Appellants' benefit to have the claim adjudicated as a substitute claimant pursuant to the newly enacted 38 U.S.C.A. § 5121A; therefore, any eligible survivor submitting a claim for accrued benefits will be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. 


Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and prior to the initial adjudication of the claims as well as afterwards.  The letters are dated in July 2008, March 2009, June 2009, and March 2010.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service treatment records (STRs), VA records, and identified private treatment records have been obtained and associated with the record.  The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).   The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326.

Finally, the Veteran testified at a Board hearing.  The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claims.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

In addition, hypertension will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  38 C.F.R. § 3.303(b).  This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.


Respiratory

The Veteran maintains that he had inservice asbestos exposure and that he began smoking during service.  He asserts that his service therefore resulted in a respiratory disorder.  At his hearing, the Veteran testified that he had a lung infection during service for which he was given penicillin, and he was diagnosed with a lung disorder on separation and noticed that he had lung problems.  However, he stated that he believed that his STRs were destroyed in a fire at the St. Louis facility so he thought that he could not file for compensation for a lung disability when he left service and only filed for compensation once he heard that his files had been found.  At this juncture, the Board notes that the St. Louis fire occurred in 1973.  His STRs were not in fact destroyed because they are contained in the paper claims file.  Moreover, he filed a claim for VA compensation for eye and sinusitis disabilities in 1968, when he left service and before the fire, and when he maintains that he knew he had lung problems.  Thus, his statement regarding why he did not file a claim even though he had a respiratory disorder since service is of diminished credibility.  He also indicated that VA records documented treatment from service discharge forward, which, as noted below, is not shown.

There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases.  However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims.  See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88- 8, Asbestos Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular have been included in VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chap. 1, Sec. I., Para. 3 (August 7, 2015) (M21-1).  Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000).  The aforementioned provisions of M21-1 have been rescinded and reissued as amended in 2015.  See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, entitled "Service Connection for Disabilities Resulting from Exposure to Environmental Hazards or Service in the Republic of Vietnam (RVN)."  

VA must analyze the Veteran's claim of under these administrative protocols using the specified criteria.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  The latency period for asbestos -related diseases varies from 10 to 45 or more years between first exposure and development of disease.  The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor.  M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2f.  The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure.  With regard to occupational exposure, exposure to asbestos has been shown in insulation, mining, milling, demolition of old buildings, carpentry and construction, and shipyard workers, and others including workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings.  The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2a-g.  Nonetheless, neither the M21-1 provisions nor the DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) create a presumption of exposure to asbestos.  Rather, they are guidelines that serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers, and they direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure.  

The Veteran was an automobile mechanic during service.  Despite the Veteran's contentions, the STRS do not reflect respiratory disease or injury or that he was treated with medication for a respiratory disease.  An October 1967 chest x-ray showed an amorphus poorly defined calcific density in the left mid lung field which was probably secondary to old granulomatous disease.  The remainder of the x-ray was clear.  The radiologist opined that there was no active pulmonary or cardiovascular disease.  Physical examination in December 1967 revealed a normal upper respiratory system.  The Veteran was discharged from service in March 1968 following a medical board for unrelated disability.  

Post-service, in October 1979, the Veteran was hospitalized by VA and noted to have pneumonia of the right lobe.  

In August 1994, the Veteran's respiratory system was normal on a VA general medical examination.

An October 1996 chest x-ray revealed no active cardiopulmonary disease.  There was blunting of the left costophrenic angle possibly secondary to adhesion.  The possibility of a small pleural effusion could not be ruled out.

In August 1997 correspondence, the Veteran indicated that he felt he had a respiratory condition due to cigarette smoking which began during service.  VA records reflect that the Veteran was long-term tobacco smoker.

Subsequent July 2008 chest x-rays showed tenting of the lateral aspect of the left side of the diaphragm.  The left and right lungs were clear.

In June 2012, the Veteran was afforded a VA examination.  The diagnosis was COPD.  The date of diagnosis was indicated as November 2002.  The examiner indicated that he had reviewed all pertinent medical records.  The examiner stated that after such review and the physical examination, the claimed upper respiratory condition and/or current mild COPD was less than likely permanently aggravated or a result of any inservice event and/or condition that occurred inservice and/or within one year of discharge.  The claimed upper respiratory condition and the mild COPD was not caused by or worsened by a service-connected condition.  The examiner noted that the inservice examinations were normal.  The Veteran had pneumonia years after service which resolved.  The examiner noted that the Veteran had worked (inservice) as an automobile mechanic with claimed asbestos exposure, but it was not related to the current COPD.  The current COPD was at least as likely as not related to the Veteran's many years of cigarette smoking.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included a review of the background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

The Veteran maintains he had inservice asbestos exposure.  Even assuming the Veteran had such exposure during service in his duties as an automobile mechanic, he does not have a diagnosis of asbestosis (or other noted asbestos-related disorders) and the recent 2012 VA opinion did not attribute the current diagnosis of COPD to asbestos exposure.  The Board has considered the Veteran's own opinion that asbestos exposure caused his lung condition.  However, as a lay person in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex.  See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)).  Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

The VA examiner opined that the Veteran's current lung disorder was consistent with his long-term cigarette smoking history.  However, to the extent that the Veteran smoked during service and asserts that current respiratory diagnosis is related to inservice smoking, 38 U.S.C.A. § 1103(A) prohibits service connection for disability or death on the basis that it resulted from disease or injury attributable to the use of tobacco products during service.  This applies to claims filed after June 9, 1998.  Such is the case here.  Thus, the Board is precluded from granting service connection on this basis. 

The most probative evidence establishes that current COPD is not related to any inservice asbestos exposure or otherwise to service.  Rather, this evidence establishes that the Veteran's COPD is related to many years of cigarette smoking and while the cigarette smoking may have commenced during service, the Board, as indicated above, cannot grant service connection on that basis.  Accordingly, service connection for a respiratory disorder including COPD is not warranted.  

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.

Hypertension

The Veteran testified that he began seeking treatment for high blood pressure in the 1980s/1990's.  However, he stated that he was told during service that he had high blood pressure.  The STRs reflect documentation of several blood pressure readings which do not substantiate the Veteran's statements.  In October 1967 and December 1967, the Veteran had blood pressure readings of 108/64.  In October 1967, the blood pressure reading was 122/80.  The STRs do not diagnose hypertension nor was the Veteran given medication during that time.  The records do not reflect hypertension per 38 C.F.R. § 4.104, Diagnostic Code 7101 (2015).

Post-service, during treatment in June 1992, the Veteran had a blood pressure reading of 152/104.  In March and April 1999, it was noted that the Veteran had a history of hypertension.  In April 1999, it was noted that the Veteran was on blood pressure medication.  On an October 2002 examination, it was noted that the Veteran had hypertension.  Subsequent VA records reflect that the Veteran was taking hypertension medication. 

In June 2012, the Veteran was afforded a VA examination.  The diagnosis was hypertension.  The date of diagnosis was noted to be September 2004.  As noted, VA records actually document that the Veteran was on hypertension medication prior to that time and the examiner also noted that the Veteran was on high blood pressure medication as early as the 1990's.  On examination, the Veteran could not recall when he was initially diagnosed.  The examiner noted that all pertinent medical records were reviewed.  The examiner stated that hypertension was not caused by or worsened by service or by a service-connected condition.  The normal inservice blood service readings were noted.  The examiner opined that current hypertension was not related to military service.  

The VA examiner's opinion, rendered by a medical professional, is afforded significant probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.)  The Board finds that the VA examiner's opinion that there is no relationship between the Veteran's hypertension and service to be more probative than the Veteran's opinion that there is such a relationship.  The Veteran provided testimony which is contradicted by the STRs which lessen the probative value.  Conversely, the VA examiner reviewed the record, examined the Veteran, and provided a medical opinion which addressed the normal inservice blood pressure readings.

Accordingly, service connection for hypertension is not warranted.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


ED/Loss of Use of a Creative Organ

The STRs do not reveal ED.  Post-service, there are no findings relative to ED for decades.  

In August 1994, the Veteran was afforded a VA general medical examination.  His genitourinary examination was normal.  In April 1999, it was noted that the Veteran's blood pressure medication was being changed because it was causing impotence.

The Veteran reported that he had ED due to his psychiatric medications and VA records confirm the presence of ED since the late-2000's.  However, at his hearing, the Veteran also expressed that his unique body systems impacted this disability and his lack of oxygen from his respiratory disorder and sinusitis affected other parts of his body resulting in ED.  

On November 2006, August 2008, and June 2012 VA psychiatric examinations, it was noted that the Veteran was not under any psychiatric treatment (although it was advised).  At his hearing, the Veteran reported that he was not taking psychiatric medication.  As of June 2012, it was also specifically noted that no psychiatric medications were being taken.  There is no medical evidence indicating that the Veteran's service-connected sinus disorder, or nonservice-connected respiratory disorder, played any etiological role at all in relation to his ED.

Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury.  Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994).  There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).  With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims ("the Court") has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.  

In this case, the Veteran did not have ED during service nor did he contend that this was the case.  Rather, he asserted that his ED was related to psychiatric medications and/or lack of oxygen due to sinusitis.  However, there is no evidence that in the years prior to his death that the Veteran was taking any psychiatric medications.  At his hearing, he also stated that he was not taking that kind of medication.  Rather, the records show that his blood pressure medications had resulted in ED.  Further, there is no evidence that the Veteran's sinusitis caused a lack of oxygen to be supplied to other body parts and resulting in ED.

As noted, lay evidence may be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Certainly, the Veteran was competent to state that he had ED.  However, the cause of that ED falls outside the realm of knowledge of a lay person.  Thus, his statements regarding the condition's etiology are of limited probative value because this determination involves a complex medical question.  See Woehlaert.  Rather, the Board finds that the clinical records which do not show that a lack of oxygen caused from sinusitis played any etiological role in causing ED, that the Veteran was not taking psychiatric medications, and that other medication (related to a nonservice-connected disability) resulted in ED, to be more probative.  As such, service connection is not warranted for ED.

VA provides special monthly compensation if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs.  38 U.S.C.A. § 1114 (k); 38 C.F.R. § 3.350(a)(1)(i).

The Veteran is not service-connected for ED or any other disorder resulting in loss of use of a creative organ.  Thus, the claim must be denied.

Ratings

Dysthymic Disorder

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

At his hearing, the Veteran related that he was having depression and problems with sleep, although he indicated that the problems with sleep were due to frequent urination.  He related that his symptoms varied in their severity.  He said that he occasionally had thoughts of hurting other, but did not report any specific event or intent.  

In August 2008, the Veteran was afforded a VA examination.  It was noted that he was married and had a close relationship with his wife and children.  He was not working and had not worked for 15 years.  He said that he did not get along with others and was terminated from employment.  Currently, he avoided stimuli related to war and had increased arousal.  He had problems with insomnia and due to his lack of sleep, he had irritability and outbursts.  Mental status examination revealed that the Veteran was fully oriented.  His appearance and hygiene were appropriate.  His behavior was also appropriate.  His affect and mood were abnormal with disturbances of motivation and mood.  He had a generalized loss of interest, low energy, depression, poor memory and poor concentration.  He had flattened affect.  His communication and speech were normal.  There were no panic attacks.  There was no suspiciousness of delusions.  There were no hallucinations.  The Veteran did not have obsessional rituals.  Thought processes were appropriate.  Judgment was not impaired.  His abstract thinking was normal and memory was also within normal limits.  There was no suicidal or homicidal ideation.  The examiner felt that the Veteran had posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) rather than dysthymic disorder.  The Global Assessment of Functioning (GAF) was 57.  The examiner indicated that the Veteran was unable to establish and maintain effective work and social relationships and it was unlikely that he could keep a job although the examiner opined that the best description was that there was occupational and social impairment with reduced reliability and productivity due to his symptoms.

In June 2012, the Veteran was afforded a VA examination.  The examiner indicated that the Veteran had dysthymia.  The examiner reported that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversion.  It was noted that the Veteran was still married although their marriage at times was rocky.  Hiis children lived out of town and he reported having current social isolation  The Veteran reported that he had not been receiving treatment.  His current symptoms included depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood.  He did not have anxiety, suspiciousness, panic attacks, impairment of short and long term memory loss, loss of memory for names of close relative and personal identifiers, flattened affect, speech abnormality, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including in a work or work-like setting, an inability to establish and maintain effective relationships, suicidal ideation, obsessive rituals, impaired impulse control, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, neglect of personal appearance or hygiene, an intermittent inability to perform activities of daily living, disorientation to time or place.  The examiner also indicated that the Veteran did not have any other symptoms.  The Veteran was capable of managing his own finances.  The examiner opined that the Veteran's symptoms had not worsened over the past several years since he was last examined.  The Veteran was not taking medication for dysthymia.  His GAF was 60.

The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130.  The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders.  

The rating criteria provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 

A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. §§ 4.125-4.130.

The Board further notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned.  VAOPGCPREC 10-95.

GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).  GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes).

Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).  A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas.  A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute).  A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death.  See 38 C.F.R. § 4.130.

The Veteran was assigned a 50 percent rating for the time period in question.  The most recent 2012 VA examination indicated symptoms more compatible with a 30 percent rating with the examiner specifically noting that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Likewise, his GAF score of 60 was indicative of moderate impairment.  However, the earlier 2008 examination reflected symptoms compatible with the assigned 50 percent rating, but no higher.  The examiner specifically indicated that the Veteran had occupational and social impairment with reduced reliability and productivity.  While his GAF score was slightly lower, it indicated moderate impairment.  His symptoms included insomnia, irritability, outbursts, abnormal affect and mood with disturbances of motivation and mood, a generalized loss of interest, low energy, depression, poor memory and poor concentration, and flattened affect.  However, the Veteran did not have suicidal ideation, obsessional rituals, abnormal speech, panic attacks, spatial disorientation, or neglect of personal appearance and hygiene.  Although he reported depression, it was not to the extent that he was unable to function independently, appropriately and effectively.  He reported some irritability, but did not exhibit any violent behavior.  Also, the Veteran had difficulty adapting to work and in social situations.  He had also reported social isolation.  On the other hand, he had variously reported having good family relationships.  Nonetheless, difficulty in establishing and maintaining effective work and social relationships is contemplated within a 50 percent rating.  

In viewing the criteria for the various rating levels, the Veteran's symptoms more nearly approximate the criteria for a 50 percent rating based on the earlier examination.  In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) acknowledged the "symptom-driven nature" of the General Rating Formula.  The Federal Circuit observed that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  The Federal Circuit explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating."  Id. at 117.   Although Vazquez-Claudio confirms that symptomatology will be the primary focus in cases for higher ratings for psychiatric impairment, it did not hold that the Board may treat the symptoms listed in General Rating Formula as a checklist from which the criteria are mechanically applied.   Each list of symptoms associated with the 30 percent, 50 percent, 70 percent and 100 percent ratings in the General Rating Formula is preceded by the words "such as," confirming that the listed symptoms are simply examples.  Instead, the Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating.  See 713 F.3d at 118 ("The 70 percent disability rating regulation contemplates initial assessment of the symptoms displayed by the Veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.").   Thus, when making such an assessment, the Board should be mindful of how the frequency, severity, and duration of those symptoms affect occupational and social impairment.  

The Board has considered the totality of the Veteran's symptoms as well as their frequency, severity, and duration.  However, the Board finds that his symptoms do fall within the rating for 50 percent.  The Board therefore finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's psychiatric symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity.  The evidence does not support a finding of occupational and social impairment, with deficiencies in most areas when the evidence is viewed as a whole.  Accordingly, the Board concludes that the criteria for a 70 percent rating are not met.  

Left Eye

At his Board hearing, the Veteran related that his right eye vision had diminished due to his nonservice-connected diabetes mellitus.  He related that he had recently gotten new glasses.  

The Veteran was afforded a VA examination in August 2008.  That examination showed that the Veteran had blindness of the left eye with no light perception.  The left cornea was opaque and internal structure could not be seen.  Uncorrected vision in the right eye was 20/30 on far vison and 20/80 near vision.  The right eye with correction exhibited normal 20/20 vision for both far and near vision.  Goldman visual field testing of the right eye was full and unrestricted.  An October 2009 evaluation revealed a cataract in the right eye, but vision remained 20/20.  

The Veteran was afforded a VA examination in June 2012.  At that time, it was noted that the Veteran had light perception only in the left eye.  The examiner indicated that the Veteran was blind in his left eye.  He had a loss of depth perception, but there was no anatomical loss.  Right eye examination was normal.  The vision in the right eye as uncorrected on distance was 20/50; uncorrected on near was 20/70; and corrected for both distance and near was 20/40 or better.  The Veteran had not suffered any incapacitating episodes or work impairment due to his eye condition.  The Veteran had a left eye scar (that disability has been separately service-connected).

The Veteran has been assigned a 40 percent rating for blindness in his left eye.  During the course of the appeal, VA revised the criteria for rating eye disabilities; however, the changes only apply to claims for benefits received by VA on or after December 10, 2008.  Because the Veteran's claim was received prior to that date, the older criteria apply here, rather than the revised criteria.  See 73 Fed. Reg. 66,543-66,554 (November 10, 2008).  

Under the old criteria, impairment of visual acuity is rated under Table V and 38 C.F.R. § 4.83a, Diagnostic Codes 6061-6079 (in effect prior to December 10, 2008).  The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a.  Under these criteria, impairment of central visual acuity is rated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity.  38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (in effect prior to December 10, 2008).  A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses.  38 C.F.R. § 4.75 (in effect prior to December 10, 2008).  The percentage rating will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye.  38 C.F.R. § 4.83a (in effect prior to December 10, 2008). 

A 40 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (5) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 20/50; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40.  38 C.F.R. § 4.84a, Diagnostic Codes 6066, 6069, 6073, 6076 (in effect prior to December 10, 2008). 

A 50 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 20/100; (2) when vision in one eye is correctable to 10/200 and vision in other eye is correctable to 20/70; (3) when vision in one eye is correctable to 5/200 and vision in other eye is correctable to 20/70; (4) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 20/70; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/50.  38 C.F.R. § 4.84a, Diagnostic Codes 6065, 6069, 6073, 6076, 6078 (in effect prior to December 10, 2008). 

A 60 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/200 and vision in other eye is correctable to 20/100; (2) when vision in one eye is correctable to 15/200 and vision in other eye is correctable to 20/100; (3) when vision in one eye is correctable to 10/200 and vision in other eye is correctable to 20/100; (4) when vision in one eye is correctable to 5/200 and vision in other eye is correctable to 20/100; (5) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 20/100; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to either 20/70 or 20/100.  38 C.F.R. § 4.84a, Diagnostic Codes 6065, 6069, 6073, 6076 (in effect prior to December 10, 2008). 

A 70 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 20/200; (2) when vision in one eye is correctable to 15/200 and vision in other eye is correctable to 20/200; (3) when vision in one eye is correctable to 10/200 and vision in other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in other eye is correctable to 20/200; (5) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 20/200; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/200.  38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (in effect prior to December 10, 2008). 

An 80 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 15/200; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 15/200; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 15/200; (4) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 15/200; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 15/200.  38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (in effect prior to December 10, 2008). 

A 90 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 10/200; (2) when vision in one eye is correctable to 5/200 and vision in other eye is correctable to 10/200; (3) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 10/200; or (4) when there is anatomical loss of one eye and vision in the other eye is correctable to 10/200.  38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (in effect prior to December 10, 2008).

A 100 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 5/200; (2) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 5/200; (3) when there is anatomical loss of one eye and vision in the other eye is correctable to 5/200; (4) when there is blindness in both eyes having only light perception; or (5) when there is anatomical loss of both eyes.  38 C.F.R. § 4.84a, Diagnostic Codes 6061, 6062, 6063, 6067, 6071 (in effect prior to December 10, 2008).

The Veteran does not meet the criteria for a higher 50 percent rating because his vision in his right eye is correctable to 20/40 or better.  Thus, he does not have blindness in one eye, having only light perception, and vision in the other eye correctable to 20/70.

A higher rating based on impairment of field of vision is not available under the applicable code.  38 C.F.R. § 4.84a, Diagnostic Code 6080 (in effect prior to December 10, 2008).  A higher rating based on concentric contraction of the visual field requires bilateral contraction to 5 degrees, which the Veteran did not have.  

Sinusitis

The Veteran testified that he could no longer smell.  However, the Veteran has been granted service connection for loss of smell and that matter is not on appeal.  He reported that he had bleeding, draining, and headaches.  The bleeding happened a couple of times a month.  The draining happened daily.  The headaches occurred once or twice a week.  He had not taken antibiotics at the time of the hearing.  

In August 2008, the Veteran was afforded a VA examination.  The Veteran reported that he would get incapacitated from his sinus episodes weekly and also had headaches.  He said that antibiotic treatment was necessary which lasted 4-5 weeks.  He had problems with breathing, had discharge, and had hoarseness.  He did not have crusting.  He reported that he did not have side effects from the antibiotics.  Examination of the nose revealed no nasal obstruction, deviated septum, partial loss of nose, partial loss of ala, polyps, scars, or disfigurement.  There was no rhinitis.  Sinusitis was present at maxillary, ethmoid, and sphenoid sinuses with tenderness.  There was no purulent discharge.  X-rays revealed chronic left frontal, bilateral maxillary, ethmoid, and sphenoid sinuses.  The diagnosis was chronic left frontal and maxillary ethmoid, and sphenoid sinusitis.  The effect on daily activities was mild.

In July 2009, the Veteran was afforded a VA examination.  At that time, the Veteran reported having constant sinus problems,  He was incapacitated as often as one time per year which lasted for five days.  He had headaches with sinus episodes.  Antibiotic treatment lasting 4-6 weeks was needed for sinus problems.  He had interference with breathing through the nose, purulent discharge from the nose, hoarseness of the voice, and pain.  There was no crusting. There were no bone infections.  Examination of the nose revealed nasal obstruction which was 30 percent in the right nostril and 40 percent in the left nostril.  There was no deviated septum, loss of part of the bone, loss of part of the ala, disfigurement, or nasal polyps.  There was rhinitis which was believed to allergic with pale, boggy, and swollen turbinates.  There was sinusitis present at the maxillary sinuses with tenderness.  There was no purulent discharge.  X-rays showed minimal chronic right maxillary sinusitis.  Occupational and daily activities were not affected.

In June 2012, the Veteran was afforded a VA examination.  The diagnosis was chronic sinusitis, pansinusitis.  The disability was noted to be near constant with the Veteran being congested nearly every week.  The Veteran had not taken antibiotics requiring a prolonged course in the past 12 months.  Also, there had not been incapacitating episodes.  The Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides.  There was not complete obstruction one side.  There was not permanent hypertrophy of the nasal turbinates.  There were no nasal polyps.  There was not at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation.  The Veteran did not have headaches, pain, tenderness, purulent discharge, or crusting.  It was noted that the sinus condition did not impact the Veteran's ability to work.  The examiner indicated that the loss of the sense of smell was due to sinusitis (that disability has been separately service-connected).

The Veteran was assigned a 10 percent rating under Diagnostic Code 6510.  Diagnostic Codes 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis), and 6514 (sphenoid sinusitis) are to be rated under the General Rating Formula for Sinusitis.  The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is detected by X-ray only.  A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.  A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  38 C.F.R. § 4.97. 

The Board finds that the criteria for a 30 percent rating, but no more are met.  One examination noted that the Veteran required a four to six week antibiotic treatment, but there is no indication that this occurred three or more times per year, particularly since it was only noted on one of the three examinations and not at the hearing.  However, the Veteran is competent to report having pain, headaches, and purulent discharge.  He consistently reported no crusting.  Although all symptoms were not shown on all examinations, the Veteran had consistently reported that the sinusitis was constant in nature and this was shown on the examination and x-rays.  A higher rating is not warranted because the Veteran had not undergone any surgery.


Conclusion for Ratings

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a rating in excess of 50 percent for dysthymia or 40 percent for left eye blindness, but supports a 30 percent rating for sinusitis.  

In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's dysthymia, left eye blindness, and sinusitis disabilities are not shown to cause any impairment that are not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe the disability symptomatology, including any symptoms resulting from the combined effects of multiple service-connected disabilities.  There have not been any hospitalizations or marked interference with employment.  The interference with employment for the psychiatric disability is squarely considered within the rating for that disability as described in the criteria.  There was only mild interference due to the other disabilities and their diagnostic codes very specifically discuss and consider the current symptoms from the appeal period during the Veteran's lifetime.  Therefore, referral for consideration of an extraschedular rating is not warranted.






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ORDER

Entitlement to service connection for an upper respiratory disorder including COPD, for accrued benefit and substitution purposes is denied.

Entitlement to service connection for hypertension, for accrued benefit and substitution purposes, is denied..

Entitlement to service connection for ED, for accrued benefit and substitution purposes, is denied.

Entitlement to special monthly compensation for loss of use of a creative organ, for accrued benefit and substitution purposes, is denied.

Entitlement to a rating in excess of 50 percent for dysthymic disorder, for accrued benefit and substitution purposes, is denied. 

Entitlement to a rating in excess of 40 percent for left eye blindness, for accrued benefit and substitution purposes, is denied.  

Entitlement to a 30 percent rating for sinusitis, for accrued benefit and substitution purposes, is granted, subject to the law and regulations governing the payment of monetary benefits.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs