Citation Nr: 18142490 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 13-08 272 DATE: October 16, 2018 ORDER The rating reduction for the Veteran’s service-connected posttraumatic stress disorder (PTSD) from 50 percent to 30 percent, effective July 1, 2010, was improper, and the 50 percent rating is restored. A 70 percent rating for PTSD is granted for the entire appeal period. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted, effective April 25, 2008. Entitlement to special monthly compensation (SMC) based on housebound status is granted, effective April 25, 2008. Entitlement to service connection for hypertension as secondary to ischemic heart disease is granted. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial compensable rating for erectile dysfunction is remanded. Entitlement to a rating in excess of 30 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes is remanded. FINDINGS OF FACT 1. The reduction of the assigned rating for service-connected PTSD from 50 percent to 30 effective July 1, 2010, was not proper as there was no improvement in the disability. 2. Throughout the appeal, the Veteran’s PTSD most nearly approximates occupational and social impairment with deficiencies in most areas, but less than total occupational and social impairment. 3. Effective April 25, 2008, the Veteran’s service-connected PTSD precludes him from securing or following substantially gainful employment. 4. Effective November 14, 2016, the criteria for SMC at the housebound rate are met. 5. The Veteran’s hypertension is proximately due to his service-connected ischemic heart disease. 6. The Veteran’s left ear hearing loss is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The reduction of the assigned rating for service-connected PTSD from 50 percent to 30 effective July 1, 2010, was improper, and the 50 percent rating is restored. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for a rating of 70 percent for PTSD, but no more, are met from April 25, 2008. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a TDIU are met from April 25, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a). 4. The criteria for SMC at the housebound rate are met, effective November 14, 2016. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 5. The criteria for entitlement to service connection on a secondary basis for hypertension are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.310(a). 6. The criteria for entitlement to service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1965 to July 1969. His decorations include the Combat Action Ribbon and Purple Heart medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from numerous rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in April 2015 for additional development. The Board notes that rating reduction claims are separate from increased rating claims. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the rating reduction resulted from the Veteran’s claim for a higher rating for his PTSD symptoms. Therefore, both the increased rating claim and the propriety of the rating reduction are on appeal and will be addressed. 1. Entitlement to a higher rating for PTSD; to include propriety of reduction from 50 percent to 30 percent effective July 1, 2010 Rating Reduction The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In this case, the Veteran was notified of the proposed reduction in his service-connected PTSD via a January 2010 rating decision and associated correspondence that same month. The actual reduction was subsequently effectuated by an April 2010 rating decision with an effective date of July 1, 2010. Therefore, the proper procedures were followed in reducing the assigned rating for this disability. Notwithstanding the requisite procedural steps, a rating reduction is not proper unless the veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). Regulations “impose a clear requirement that VA rating reductions... be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Board further notes that the 50 percent rating for PTSD had been in effect since April 25, 2008. In short, the rating had been in effect for less than 5 years when it was reduced. Thus, the provisions of 38 C.F.R. § 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions, do not apply. Instead, the provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years may be reduced upon a showing that the disability has improved. In Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those that have been in effect for less than five years. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and evaluation of the disability, that each disability be viewed in relation to its history. Id. at 420. Similarly, 38 C.F.R. § 4.2, establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. The Court has held that these provisions “impose a clear requirement” that rating reductions be based on the entire history of a veteran’s disability. Id. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. After reviewing the relevant evidence, the Board finds that the reduction in rating was not warranted since the Veteran’s disability had not shown the required improvement in PTSD symptoms. The Veteran’s PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2017). Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for symptoms manifested by 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. In reducing the Veteran’s rating, the RO compared the results of two examinations. The initial VA examination was conducted in September 2008. The examiner highlighted the Veteran’s preoccupation with combat experiences, sleep impairment, frequent perimeter checking, marital discord, frequent outbursts of screaming, feelings of detachment and estrangement from others, feelings of hopelessness, and survivor’s guilt. Overall, the examiner found the Veteran’s symptoms to result in deficiencies in most areas. The second VA examination was conducted in September 2009, which was the basis for the rating reduction. There, the Veteran reported drinking to intoxication five times per month as a means to self-medicate and decrease his anger and anxiety. Additionally, he reported verbal disagreements with his son, sleep impairment due to dreams of Vietnam, marital discord due his drinking, and becoming upset and angry in bad traffic. He denied suicidal and homicidal thoughts. The examiner noted irritability or outbursts with occasional periods of functioning without impairment. In support of his appeal, the Veteran submitted a May 2010 private psychological evaluation. There, the licensed psychologist described a continued pattern of persistent suicidal ideation, homicidal ideation, social isolation, anger, and impaired impulse control. The Veteran’s wife reported road rage and that she had to prevent him from becoming physically violent. In a February 2010 written statement, the Veteran indicated that the RO reduction was based on a thirty-minute VA examination that downplayed his serious symptoms and should be afforded no probative value. See also May 2010 written statement. In comparison, the Veteran highlighted his rapport with the private examiner that examined him for 120 minutes. The Board notes the differences in the severity of the Veteran’s symptoms described in the September 2008 VA examination report, the September 2009 VA examination report, and the May 2010 private psychological examination. Given the above evidence, the Board finds that the September 2009 examination results do not show improvement in the disability under the conditions of ordinary life and work. Thus, the disability has not shown actual improvement. As such, the rating reduction was improper and the 50 percent rating is restored. Higher Rating The Veteran’s PTSD is currently rated 50 percent disabling. He asserts that throughout the entire appeal his PTSD has been more severe than the currently assigned rating and that he is entitled to an increased rating. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran’s PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2017). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when the psychiatric condition produces 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational or 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. After a review of the medical and lay evidence, the Board finds that the criteria for a higher rating of 70 percent are met throughout the appeal, effective April 25, 2009. The evidence shows that the Veteran’s PTSD produces deficiencies in most areas due to such symptoms as: depressed mood, anxiety, anger, chronic sleep impairment, nightmares, avoidance, disturbances of motivation and mood, hypervigilance, isolation, impaired impulse control and judgment, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Conversely, the Board finds that the Veteran’s symptoms do not more nearly approximate a rating of 100 percent as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of gross impairment in thought processes or communication; persistent delusions; 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; or memory loss for own occupation, or own name. The September 2008 VA examiner indicated that the Veteran can maintain his personal hygiene, his cognitive skills were intact, and he was oriented to time, place, person, and situation. See also September 2009, May 2012, and October 2016 VA examination reports. Notably, none of the VA examiners found that the Veteran was totally occupationally and socially impaired. As to impaired impulse control, the Veteran has consistently reported anger and irritability. He has further reported nightmares and nearly choking his wife due to his nightmares. See September 2008 VA examination report and July 2015 private psychiatric evaluation. His wife reported that he threw objects, struck walls, screamed, and checked the perimeter of the house daily. See April 2008 private psychiatric evaluation. The Veteran has also reported a history of alcohol abuse, road rage, suicidal and/or homicidal ideation at times. Id; May 2010 private psychiatric evaluation; May 2012 VA examination report. However, at other times, the Veteran has denied suicidal or homicidal ideation/intent. See, e.g., September 2008, September 2009, and October 2016 VA examination reports; October 2008 and June 2015 private psychiatric evaluations. In May 2010, he agreed to consider separating his guns and ammunition into different sections of his home. The Board acknowledges the Veteran’s history of intermittent suicidal ideation, road rage, outbursts of anger, hypervigilance, and exaggerated startle response. However, none of the VA examiners have found a history of violence/assaults or inappropriate behavior. Therefore, the Board finds that his suicidal ideation and periods of angry outbursts are contemplated by a 70 percent rating, though he does not show persistent danger to himself or others that is characteristic of a 100 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). As to social impairment, the Veteran has reported feelings of social detachment, estrangement, and diminished social interest. See September 2008 VA examination report and October 2008 private psychiatric evaluation. The Veteran reported during the September 2008 examination that he has been married to his second wife for twenty-eight years, has been estranged from his son, but has a positive relationship with his daughter and grandson. See also October 2016 VA examination report. As previously mentioned, the Veteran’s wife reported marital discord due to his heavy drinking. See September 2009 VA examination report. In May 2012, the Veteran reported a “so-so” relationship with his wife, but indicated that she was a good source of support. The Veteran has reported having two to three close friends but tends to stay at home. Thus, the Board notes that the Veteran maintained a relationship with his wife and otherwise demonstrated an ability to maintain some social relationships, despite significant, even severe, social impairments due to irritability, angry outbursts, and other symptoms described above. As to occupational impairment, the Veteran reported that he worked for a phone company for thirty years. Further, he reported that he often had conflict with authority figures in the work environment and engaged in non-physical arguments with his supervisors. See April 2008 private psychiatric evaluation. The Board acknowledges that the Veteran’s PTSD causes significant occupational impairment, as discussed below. The Board notes that the evidence of record shows the Veteran has additional symptomatology not enumerated in the rating criteria, including exaggerated startle response, intrusive thoughts, and flashbacks. However, the symptoms listed in the rating criteria are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. These additional symptoms are not seen as effecting more than a reduction in reliability and productivity. Mauerhan. Based on the above-cited evidence and the Veteran’ competent and credible reports as to the intensity, frequency, and nature of his psychiatric symptoms throughout the course of the appeal, a 70 percent rating for PTSD is warranted, from April 25, 2008. The evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational and social impairment that render him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. As such, the preponderance of the evidence shows that the Veteran’s psychiatric symptomatology does not more closely approximate the criteria for a 100 percent disability rating under the general rating schedule for psychiatric disorders. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert. 2. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The instant decision awards the Veteran a 70 percent rating for PTSD from April 25, 2008, the date of service connection. Accordingly, since April 25, 2008, he has met the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). The question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran asserts that he is entitled to a TDIU based on his service-connected PTSD and diabetes. In his October 2008 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, he indicated that he worked from 1969 to 1998 as a service technician at a phone company. The Veteran’s educational background includes four years of high school education. The Board notes that the Veteran has presented conflicting information regarding his work history over the course of the appeal. In this regard, he has reported that he retired as he was eligible by age or duration of work (September 2008 VA examination report), however in his May 2010 private psychiatric evaluation, he reported that he retired as a result of fear that he might be fired. He reported wanting to “strike” the foreman and arguments over obtaining time off. The August 2009 VA examiner determined that the Veteran was fully employable as it relates to his service-connected diabetes. The November 2016 VA examiner determined that the Veteran’s diabetes does not preclude limited duty or sedentary employment not requiring physical exertion, driving or operating machinery, walking, standing, kneeling or squatting, climbing stairs or ladders, lifting or carrying. Thus, the Board finds that the Veteran is not entitled to a TDIU based on his service-connected diabetes. The Veteran reported to the April 2008 private psychiatrist a history of homicidal ideation during his work history. In October 2008, the same psychiatrist determined that the Veteran’s homicidal tendencies, impaired impulse control, and suicidal ideation render him a danger to any work environment. See also June 2015 private psychological evaluation. Additionally, the September 2008 VA examiner noted the Veteran’s preoccupation with Vietnam and intrusive thoughts resulted in deficiencies in most areas, to include employment. The October 2016 VA PTSD examiner determined that the Veteran was capable of sedentary occupational tasks with a routine and consistent job demands that are consistent with his education and past work experience. The Board has no reason to doubt or question the veracity of the positive evidence of record, including the Veteran’s lay statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Affording the Veteran the benefit of the doubt, the Board finds that he is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. The benefit sought on appeal is granted effective April 25, 2008. 3. Entitlement to SMC VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU may satisfy the “rated as total” element of section 1114(s), if the TDIU is awarded for a single disability. Buie, supra. In this case, the Veteran is entitled to TDIU for his PTSD alone, and has an additional service-connected disability (ischemic heart disease) rated at 60 percent from November 14, 2016. Accordingly, he is entitled to SMC at the housebound rate from that date. 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(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 4. Entitlement to service connection for hypertension, to include as secondary to service-connected ischemic heart disease In this case, the Veteran seeks service connection for hypertension on both a direct and secondary basis. As secondary service connection is warranted, only that theory of entitlement will be addressed in the instant decision. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1. The Veteran has current diagnosis of hypertension. See April 2013 VA treatment record. He is also service-connected for ischemic heart disease. Accordingly, the first two elements of secondary service connection are established. Regarding the final element of service connection, nexus, in a June 2010 medical opinion, the Veteran’s private treating physician, Dr. P.J.Y., opined that the Veteran’s hypertension is more likely than not related to his ischemic heart disease. Dr. P.J.Y., highlighted the Veteran’s “wide pulse pressure of 66” and noted that it is associated with “heart disease via atherosclerosis and arteriosclerosis.” The Board notes the negative August 2009 and November 2016 nexus VA medical opinions of record. However, the examiners based their opinions on the fact that the Veteran had hypertension before diabetes and heart disease, which is in conflict with recent case law saying it is not necessary that diabetes and heart disease be service-connected, or even diagnosed, at the time hypertension is incurred. See Frost v. Shulkin, 29 Vet. App. 131 (2017). Thus, the Board finds that these opinions are of no probative value. Accordingly, there is no competent contrary opinion of record. As such, service connection is warranted on a secondary basis. See 38 C.F.R. § 3.310(a). 5. Entitlement to service connection for left ear hearing loss For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA purposes). The threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 157 (1993). The January 2018 private audiological report establishes left ear hearing loss pursuant to 38 C.F.R. § 3.385. Additionally, VA has conceded that the Veteran was exposed to in-service acoustic trauma in light of his Combat Action Ribbon. Thus, the first and second elements of service connection are established. Therefore, this appeal turns on whether there is a nexus between the Veteran’s left ear hearing loss and service. The December 2010 VA examination report and June 2010 private medical opinion indicate that the Veteran’s hearing loss is related to his in-service acoustic trauma. Thus, a nexus to service is established. The Board acknowledges that a VA audiologist, who examined the Veteran in November 2016, ultimately reached a conclusion unfavorable to the Veteran. However, the examiner’s opinion was based on the finding of normal hearing at the time of the examination. Thus, the Board finds this opinion is of no probative value, and service connection for left ear hearing loss is warranted. REASONS FOR REMAND 6. Entitlement to service connection for right ear hearing loss is remanded. As noted in the prior remand, the Veteran’s claim has been denied because the Veteran’s audiometric data was not severe enough to be considered hearing impairment under VA law. However, the Veteran submitted a private audiological evaluation dated August 2010 with right ear speech discrimination score of 90%. It is not clear from the report whether the Maryland CNC word list was used during this evaluation as required by 38 C.F.R. § 3.385. As such, further clarification is needed on remand. See Savage v. Shinseki, 24 Vet. App. 259 (2011). 7. Entitlement to an initial compensable rating for erectile dysfunction is remanded. A November 2012 VA treatment record shows that the Veteran complained of a painless mass on the shaft of his penis of seven months duration. Physical examination revealed a one-centimeter cystic mass. See also January and April 2013 VA treatment records. In view of the foregoing, the Board concludes that a remand is required to accord the Veteran a new VA examination, one which takes into account the records of prior medical treatment, to determine the severity of his service-connected erectile dysfunction. Additionally, in a recent decision, Williams v. Wilkie, the Court held that the term “deformity” in the diagnostic criteria historically applied to erectile dysfunction by analogy, DC 7522, which awards a 20 percent disability rating for a “penis, deformity, with loss of erectile power,” should be given its ordinary meaning “a distortion of the penis, either internal or external.” No. 16-3252, 2018 U.S. App. Vet. Claims LEXIS 1037 (Aug. 7, 2018). The current medical evidence does not indicate whether the Veteran has deformity of the penis, either internal or external, within the meaning assigned under Williams v. Wilkie. Therefore, a new VA examination is needed to address this issue. 8. Entitlement to a rating in excess of 30 percent for a right knee disability is remanded. 9. Entitlement to an initial rating in excess of 20 percent for diabetes is remanded. Remand is also required to comply with the previous remand instructions. In April 2015, the Board instructed the RO to issue a Statement of the Case (SOC) for the Veteran’s claims for entitlement to increased ratings for service-connected right knee disability and diabetes. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This was not accomplished; thus, remand is again required. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The matters are REMANDED for the following actions: 1. Issue a SOC regarding entitlement to increased ratings for service-connected diabetes and right knee disability. 2. Obtain any outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include from Orlando Ear, Nose & Throat Associates, P.A. 4. Then contact Orlando Ear, Nose & Throat Associates, P.A and request clarification as to whether the August 2010 speech discrimination testing was conducted using the Maryland CNC test. 5. Then schedule the Veteran for a VA examination to determine the current nature and severity of his erectile dysfunction. The examiner must review the claims file. Taking into account the medical and lay evidence in the claims file, the examiner must determine the current severity of the Veteran’s erectile dysfunction and specify whether the Veteran has internal or external deformity of the penis. In addressing this question, the examiner must specifically discuss the November 2012 VA treatment record indicating a 1-cm cystic mass on the shaft of the penis, and indicate whether this is reflective of internal or external penile deformity. See also January and April 2013 VA treatment records. The examination report must include a complete rationale for all opinions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel