Citation Nr: 1725035	
Decision Date: 06/30/17    Archive Date: 07/10/17

DOCKET NO.  13-16 102	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a rating in excess of 40 percent for bilateral hearing loss since July 29, 2013.  

2. Entitlement to service connection for erectile dysfunction, including as secondary to coronary artery disease.

3. Entitlement to service connection for bilateral lower extremity edema, as secondary to coronary artery disease. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Kutrolli, Associate Counsel

INTRODUCTION

The Veteran had active service from June 1964 to March 1972 and from September 1990 to May 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2014 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran submitted a Notice of Disagreement on April 5, 2013, in which he expressed disagreement with the rating reduction for bilateral hearing loss (from 40 to 30%) provided in the June 27, 2012, rating decision. However, the Veteran never filed a VA-Form 9, Appeal to Board of Veterans' Appeals, appealing the rating reduction. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating claim. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Consequently, the rating reduction claim is not before the Board. Therefore, the Board will not analyze whether an increased rating is warranted from September 2, 2010, to July 29, 2013, as such would constitute an improper and unpreserved challenge to the rating reduction.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for bilateral lower extremity edema is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).







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FINDINGS OF FACT

1. The Veteran did not appeal to the Board the rating reduction provided by the June 27, 2012, rating decision.

2. Since July 29, 2013, the Veteran's hearing loss has not increased in severity for rating purposes.

3. The Veteran's erectile dysfunction is not proximately due to or the result of his service connected coronary artery disease.


CONCLUSIONS OF LAW

1. There is no justiciable case or controversy on appeal before the Board with respect to the issue of a rating reduction from 40 to 30 percent for bilateral hearing loss, effective September 2, 2010. 38 U.S.C.A. §§ 7104(a), 7105 (West 2014); 38 C.F.R. §20.101 (2016).

2. The criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2016).

3. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist 

The VA made reasonable efforts to fulfill its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim. Also, the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. 

II. Increased Rating for Bilateral Hearing Loss

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Ratings for hearing loss range from noncompensable to 100 percent based on impairment of hearing acuity as measured by speech discrimination tests (Maryland CNC) and puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. The results are charted on Table VI or Table VIa. The rating schedule establishes 11 auditory acuity levels designated from Level I (normal hearing) through Level XI (profound deafness). 38 C.F.R. § 4.85(h). Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI or VIa. 38 C.F.R. § 4.85(e). 

In this case, the Veteran's disability rating for bilateral hearing loss was reduced from 40 to 30 percent on June 27, 2012. That rating reduction is not on appeal. Thereafter, based on a July 29, 2013, private treatment record from Mike Ward's Hearing Center, a 40 percent rating was assigned because the Veteran's right ear had a speech discrimination score of 52 with an average decibel loss of 76, and his left ear had a speech discrimination score of 64 with an average decibel loss of 70. Applying those findings to Table VI, VIa, and VII, the highest rating warranted is 40 percent. 

The Veteran now asserts that he is entitled a higher rating than the one assigned in the December 2015 rating decision. However, there is no other evidence to indicate that his hearing loss is more severe than that reflected above. Accordingly, a rating in excess of 40 percent is denied. 

The Board also finds that referral for an extraschedular rating is not warranted because the signs and symptoms of the Veteran's hearing loss are contemplated by the rating schedule. 38 C.F.R. 4.16(a); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's service connected bilateral hearing loss disability is manifested by signs and symptoms such as decreased hearing acuity, difficulty hearing in groups, and difficulty hearing with background noise. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the evaluation of hearing impairment. 38 C.F.R. §§ 4.85, 4.86(a). Given the variety of ways in which the rating schedule contemplates hearing impairment, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. There is nothing exceptional or unusual about the Veteran's hearing loss. Therefore, referral for extraschedular evaluation is not warranted. 

II. Service Connection for Erectile Dysfunction

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Additionally, a disability that is proximately due to, or the result of, a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Whether these requirements are met is based on analysis of all the evidence of record and the evaluation of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). 

In this case, the record contains medical findings that the Veteran's erectile dysfunction is not due to service or the service connected coronary artery disease. An April 2012 examination and medical opinion states that there is no etiological relationship between erectile dysfunction and coronary artery bypass graft surgery or coronary artery disease. The examiner went on to opine that the Veteran's condition was more likely than not related to his age (75) and psychological reasons. A September 2014 medical opinion also states that the Veteran's erectile dysfunction is most likely due to the natural aging process. While the record contains positive evidence in the form of a May 2013 medical opinion, the Board assigns no probative weight to it because the examiner completely failed to provide an explanation or rationale for the opinion. 

For these reasons, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service connection for erectile dysfunction is denied. 


ORDER

A rating in excess of 40 percent for bilateral hearing loss is denied.

Entitlement to service connection for erectile dysfunction is denied.


REMAND

Additional development is necessary before the Veteran's service connection claim for bilateral lower extremity edema can be decided. While the September 2014 medical examiner opined that the Veteran's edema is most likely related to his non-service connected ischemic cardiomyopathy, he failed to discuss or analyze the Veteran's ejection fraction results. Thus, another medical opinion is necessary to thoroughly address the nature and etiology of the Veteran's bilateral lower extremity edema. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain a medical opinion from an appropriate physician (preferably a cardiologist) to assess the nature and etiology of the Veteran's bilateral lower extremity edema. The claims file should be reviewed by the physician prior to expressing his or her opinion on the following question:

(a) Is it at least as likely as not (50% probability or greater) that the Veteran's bilateral lower extremity edema is caused by or due to his service connected coronary artery disease? Please explain the reasons for your opinion, including a discussion of the Veteran's ejection fraction results. 

2. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for a response. After the Veteran is given an opportunity to respond, the case should be returned to the Board.

The examiner should avoid the use of vague, conclusory or equivocal language. The Court has repeatedly held that medical opinions expressed in terms of "may," or "could be" are too speculative to be of probative value. See, e.g., Warren v. Brown, 6 Vet. App. 4, 6 (1993) (finding physician's statement that the Veteran's psychiatric disorder "could have been" caused by active service was too speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (stating that a medical opinion expressed in terms of "may" also implies "may not," and is too speculative). If any of the requested opinions cannot be provided without resorting to speculation, you should explain why an opinion cannot be provided (e.g., lack of sufficient information, limits of medical knowledge, etc.). See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs