Citation Nr: 18150404 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-35 273A DATE: November 15, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to a compensable initial rating for a bilateral hearing loss disability is denied. REMANDED Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Hypertension was not manifest in service, within one year of separation from service, and is not otherwise related to the Veteran’s active service. 2. Erectile dysfunction was not manifest in service, within one year of separation from service, is not otherwise related to the Veteran’s active service, and was not caused or aggravated by a service-connected disability. 3. Diabetes mellitus, type II, was not manifest in service, within one year of separation from service, and is not otherwise related to the Veteran’s active service. 4. The Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level I hearing acuity in the right ear and level I hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2018). 2. Erectile dysfunction was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317 (2018). 3. Diabetes mellitus, type II, was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2018). 4. The criteria for a compensable initial rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1988 to June 1992, including service in Southwest Asia. The Board acknowledges that additional evidence has been associated with the electronic claims file by the RO since the last adjudication of the above claims. No waiver is of record. In an August 2017 statement, the Veteran withdrew his request for a Board hearing and requested that the claim be forwarded to the Board without further delay for adjudication. The letter noted the Veteran’s option of having the claim returned to RO for a local hearing or other development, yet he chose to request that the matter be immediately sent to the Board. In context, it is clear that the Veteran desires that the Board adjudicate the claim at this time. Service Connection 1. Entitlement to service connection for hypertension 2. Entitlement to service connection for erectile dysfunction 3. Entitlement to service connection for diabetes mellitus, type II Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Certain diseases, to include diabetes mellitus, cardiovascular-renal disease (including hypertension), and other disease of the nervous system may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). As there is no evidence or claim that the Veteran was diagnosed with the above disabilities within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, 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). In the alternative, service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran’s service treatment records do not include complaints, treatment, or diagnosis of elevated blood sugars or other symptoms of diabetes mellitus during service. Similarly, the Veteran’s blood pressure was within normal limits for VA compensation purposes during service, although the Board notes that in a Report of Medical History prior to separation from service the Veteran indicated that he was unsure as to whether he had a history of high or low blood pressure. A contemporaneous Report of Medical Examination included a blood pressure reading of 133/69. Thus, there is no evidence of the onset of any of the claimed disabilities in service. Here, diabetes, hypertension, and erectile dysfunction were not noted during service. In addition, the Veteran did not have characteristic manifestations sufficient to identify any of these disease entities. 38 C.F.R. § 3.303. Similarly, there is no evidence of a continuity of symptomatology of symptoms from service. The Veteran does not contend and the medical evidence does not indicate ongoing problems from service and there is no evidence or contention that the Veteran sought treatment based on symptoms related to the diabetes, hypertension, or erectile dysfunction until multiple years after service. Thus, the Veteran had no in-service evidence of diabetes mellitus, hypertension, or erectile dysfunction and the evidence of record does not include lay or medical evidence of a continuity of symptomatology since service. Furthermore, the Veteran has not contended and the claims file does not contain any evidence that a competent medical professional has otherwise linked his current diabetes mellitus, hypertension, or erectile dysfunction to his active service. Instead, the Veteran’s original July 2011 claim for compensation benefits indicates that his diabetes and hypertension had their onset in 2003 and his erectile dysfunction had its onset in 2011. In his February 2014 notice of disagreement, the Veteran clarified his belief that his hypertension and diabetes mellitus were due to “Gulf War Syndrome” and that his erectile dysfunction was secondary to either his hypertension or diabetes mellitus. In order to obtain a grant of service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural endoscopic, laboratory, or other objective signs or injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders included, but are not limited to IBS, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, pastprandial fullness, and painful or difficult swallowing. Note to 38 C.F.R. § 3.317(a)(2)(i)(B)(3). Medically unexplained chronic multisymptom illnesses are defined as a diagnosed illness without conclusive pathophysiology or etiology. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). The Veteran’s claimed diabetes mellitus, hypertension, and erectile dysfunction have been attributed to known clinical diagnoses and, as such, entitlement to service connection under 38 C.F.R. § 3.317 is not warranted. Again, there is no explicit lay or medical evidence otherwise linking the Veteran’s diabetes mellitus, hypertension, or erectile dysfunction and service. To the extent that the Veteran’s contentions implicitly attempt to link his diabetes mellitus, hypertension, and/or erectile dysfunction directly to service, to include his service in Southwest Asia, individuals can attest to factual matters of which he or she has first-hand knowledge and the Veteran’s assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of such disabilities falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As such, the Board affords the Veteran’s contentions as to the etiology of his diabetes mellitus, hypertension, and erectile dysfunction no probative weight. As to the Veteran’s contentions that his erectile dysfunction was caused or aggravated by his hypertension and/or diabetes mellitus, as the underlying disabilities are not service connected there is no basis for granting the Veteran’s erectile dysfunction claim on a secondary basis. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeals must therefore be denied. Increased Rating 4. Entitlement to a compensable initial rating for a bilateral hearing loss disability Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2018). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran alleges that the RO erroneously failed to assign him a higher rating for his bilateral hearing loss. The evaluation assigned for a service-connected disability is established by comparing the manifestations shown with the criteria in the VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned. 38 C.F.R. § 4.86 (a) & (b). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2018). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. Here, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran underwent a VA examination in January 2013. The Veteran reported difficulty understanding conversations in the presence of environmental noise when the air conditioner was running in the home and when in an automobile. He also played the television louder than others preferred. The results of the audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 15 20 40 70 LEFT 20 20 35 65 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 100 percent for each ear. The average of the pure tones between 1000-4000 Hz was 36.25 for the right ear and 35 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left ear. Such a degree of hearing loss warrants only a noncompensable evaluation under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). In his February 2014 notice of disagreement, the Veteran contended that a 20 percent disability rating was warranted for his bilateral hearing loss disability. A May 2015 VA treatment record indicated that the Veteran’s hearing loss did not affect his ability to understand or participate in his medical care. The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability on a schedular basis involves the mechanical application of rating criteria to the results of specified audiometric studies. The Veteran has not contended that his hearing acuity has worsened since the last examination and, therefore, there is nothing to suggest that an additional VA examination would be beneficial. Considering the results of the VA examinations, entitlement to a compensable disability rating is denied for any period on appeal. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 30 percent for PTSD is remanded. The Veteran was afforded a VA examination in July 2013. The Veteran’s anger and mood changes were noted to be unrelated to his PTSD (and due to his bipolar disorder). Symptoms of PTSD were flashbacks, memories, and recurring dreams. The examiner concluded that the Veteran’s PTSD was diagnosed, but that the associated symptoms were not severe enough either to interfere with occupation and social functioning or to require continuous medication. The Veteran reported that his main problem in keeping a job was related to his anger and mood swings. He stated that he had been employed in multiple jobs, but always would become irritated at work, get in a fight, and be fired. The Veteran believed that he currently was ready for work and had been placing applications for employment but had not yet been hired. Past work history was primarily in construction. The Veteran had symptoms of depression, anxiety, and chronic sleep impairment. The examiner concluded that the Veteran’s PTSD was related to service, but his diagnosed bipolar disorder began after service and the Veteran did not have bipolar symptoms during service. In a February 2014 statement, a friend living with the Veteran for 3 years reported that he had gotten up at night thinking people were shooting at him. The Veteran had sleep problems and his family would not come around him because they were scared of the Veteran. When he worked a job he could not stay focused because his mind would wander and be in a daze because he was constantly thinking of the military. His ex-wife had gotten a restraining order and their children were scared of the Veteran. There also was evidence of hypervigilance. In a February 2014 notice of disagreement, the Veteran contended that a 60 percent disability rating was warranted for the PTSD. In March 2016, the Veteran stated, “I’m staying with family right now but they are scared of me.” Symptoms included sleep problems, pacing at night, and flashbacks. In his July 2016 substantive appeal, the Veteran reported flashbacks, anger, speech issues, difficulty understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He believed he was unemployable due to the large amount of medications he was taking. The evidence since the July 2013 VA examination suggests a worsening in the Veteran’s mental health symptoms, as new mental health symptoms have been noted since the last examination. As such, a remand for a new examination is necessary. 2. Entitlement to TDIU is remanded. The Veteran’s TDIU claim is inextricably intertwined with the remanded PTSD claim, as an increased rating for the PTSD issue could affect the TDIU claim. As such adjudication of the TDIU is deferred pending the requested development for the PTSD claim. The matters are REMANDED for the following action: 1. Associate with the electronic claims file all VA treatment records from November 2017 to the present. 2. After the above has been completed, the RO should schedule an appropriate VA examination to determine the current severity of the Veteran's service-connected PTSD. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner is to describe the Veteran's symptoms, and note the impact, if any, of the Veteran's disorder on his social and industrial functioning. The examiner is to provide information concerning the functional impairment that results from the service-connected disability which may affect the Veteran's ability to function and perform tasks, to include any functional impairment of the Veteran's service-connected disabilities with regard to his employment. 3. After the above is complete and undertaking any additional development necessary in light of the examination report findings, readjudicate the Veteran’s claims. If a complete grant of benefits is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel