Citation Nr: 18151949 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 12-29 990 DATE: November 20, 2018 ORDER Service connection for erectile dysfunction (ED) is denied. An initial compensable rating for right ear hearing loss is denied. A 10 percent rating, but no higher, for a respiratory disability is granted. FINDINGS OF FACT 1. The Veteran’s erectile dysfunction was not incurred in or due to his time in service. 2. The Veteran’s right ear hearing loss was not manifested by level I hearing acuity. 3. The Veteran’s respiratory disability is manifested by FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303. 2. The criteria for a compensable rating for right ear hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.186, DC 6100. 3. The criteria for a 10 percent rating, but no higher, for a respiratory disability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.97, DC 6604, 6845. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1973 to April 1979. As a preliminary matter, the Board notes the Veteran originally requested a hearing. However, in a September 2018 letter, the Veteran withdrew his request. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends he has erectile dysfunction that was incurred in and due to his time in service. The Veteran has been diagnosed with erectile dysfunction. The Veteran’s service treatment records (STRs) do not mention any erectile or sexual dysfunction problems. In his September 2015 hearing, the Veteran reported he became immune to the treatments for gonorrhea in Korea. The Veteran said he first noticed his erectile dysfunction after he left Korea in 1975. While in Korea, he had gonorrhea nine times. The Veteran was afforded an examination for his erectile dysfunction in April 2016. The April 2016 examiner opined the etiology of the Veteran’s erectile dysfunction was depression. The examiner explained that while the Veteran believed his erectile dysfunction was due to several episodes of gonorrhea while in Korea, the Veteran had adequate sexual function after discharge and only developed his problems in the last few years. Furthermore, the examiner opined there was no known connection between gonorrhea and later erectile dysfunction. In May 2016, the April 2016 examiner reiterated erectile dysfunction is not caused by gonorrhea and the most probably cause was the Veteran’s depression. After review of the Veteran’s record, the Board finds the Veteran’s medical records do not contain evidence showing the Veteran’s erectile dysfunction is at least as likely as not due to his time in service, to include his bouts of gonorrhea. Therefore, the claim must be denied. Increased Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Right Ear Hearing Loss The Veteran currently has a noncompensable rating for his right ear hearing loss. The Veteran contends his right ear hearing loss is worse than indicated by his current rating. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Simply stated, this means that while the Veteran may have hearing problems (this fact is not in dispute), whether he has hearing loss warranting compensation is based on certain objective criteria. The only question is the degree of disability. The Veteran had an examination in 1984 for his right ear hearing. However, it does not appear all puretone threshold levels were tested. Therefore, this examination, which showed puretone thresholds of 0 at 1000, 2000 and 4000 dB cannot be used to determine the Veteran’s level of hearing loss. The Veteran was afforded an examination for his right ear hearing loss in June 2011. The puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 35 45 The average puretone threshold decibel loss was 29 dB in the right ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The results in this evaluation reveal that the Veteran’s hearing loss was manifested by no more than level I hearing acuity in the right ear. This designation equates to a noncompensable evaluation. In his September 2015 hearing, the Veteran said his right ear hearing loss had gotten worse. Therefore, a new examination was ordered upon remand of this case. The Veteran was afforded another examination for his right ear hearing loss in April 2016. The puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 20 40 40 The average puretone threshold decibel loss was 33 dB in the right ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The results in this evaluation reveal that the Veteran’s hearing loss was manifested by no more than level I hearing acuity in the right ear. This designation equates to a noncompensable evaluation. The Board has reviewed the remainder of the Veteran’s record and has found no evidence that would provide for a compensable rating for his right ear hearing loss as the Veteran’s audiograms do not indicate puretone threshold or Maryland CNC word tests that would warrant a compensable rating. The assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable initial rating was warranted at any time during the appeal period. Therefore, the claim for a compensable rating for bilateral hearing loss must be denied. The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment, but they do not apply because the Veteran does not demonstrate an exceptional pattern of hearing impairment. Respiratory Disability The Veteran is currently rated under DC 6845 for his respiratory disability. The General Rating Formula for Restrictive Lung Disease provides that Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. The Veteran contends his respiratory disability is worse than indicated by his noncompensable rating. The Board notes this matter was previously remanded in part to obtain pulmonary function test (PFT) results from 2011 and from 2014. However, an April 2016 memo indicated the Veteran did not have PFT results from 2014, only from 2011 and 2015. The 2011 and 2015 PFT results are part of the Veteran’s record and have been considered as discussed below. In his September 2015 hearing, the Veteran reported he had lots of congestion and a hard time breathing. The Veteran reported that due to this, he couldn’t get around and do the work he used to be able to do. In a May 2011 examination, the examiner noted the Veteran’s FEV-1 levels were 86 percent before use of a bronchodilator and 93 percent after use. The Veteran was afforded an examination for his respiratory disability in November 2015. November 2015 PFT results showed the Veteran had FEV-1 levels of 89 percent and FVC levels of 86 percent. The examiner opined the Veteran did not have obstruction. In June 2016, the Veteran’s 2015 examiner noted DLCO levels were not tested as the examiner did not believe they were necessary to properly evaluate the Veteran’s pulmonary status. The Veteran was afforded another examination for his respiratory disability in May 2016. The examiner opined the PFT results from 2015 accurately reflected the Veteran’s current pulmonary function with the Veteran’s FEV-1 at 87 percent before use of a bronchodilator and 89 percent after use. The Veteran’s pre-bronchodilator use FVC level was 94 percent and 86 percent after use. The Veteran’s FEV-1/FVC level was 73 percent pre-bronchodilator and 81 percent after use. The examiner opined the FEV-1/FVC level most accurately reflected the Veteran’s level of disability. The Veteran’s medical records contain other FEV-1 level readings. In April 2010, the Veteran’s FEV-1 level was 79 percent. In May 2011, his pre-bronchodilator use FEV-1/FVC level was 69 percent and 72 percent after use. In another test, a May 2011 PFT result showed the Veteran had FEV-1 levels of 86 percent before use of a bronchodilator and 93 percent post use. The Veteran’s FVC level before use of a bronchodilator was 92 percent and post use was 102 percent. The examiner opined the Veteran had no obstruction. The Board notes the Veteran has had several PFT results with FEV-1 or FEV-1/FVC levels between 71 and 80 percent. Therefore, the Board finds a higher, 10 percent rating is warranted. However, the evidence does not contain PFT results between 56 to 70 percent of FEV-1 or FEV-1/FVC or DLCO levels between 56 to 65 percent. Pertaining to both the Veteran’s increased rating claims, neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the above, the Board acknowledges the Veteran’s statements that his right ear hearing loss has gotten worse, his breathing is often obstructed, he can no longer be as active as he once was due to his breathing, and his belief his erectile dysfunction was due to his time in service, specifically his bouts of gonorrhea. However, while the Veteran is competent to report his symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature, etiology, and severity of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent medical evidence of record. It is important for the Veteran to understand that the medical findings provide highly probative evidence against his claims that the Board cannot, unfortunately, ignore. While his disabilities clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Veteran has not expressly raised the issue and the issue is not raised by the record. Additionally, the Board notes the Veteran’s combined disability rating is 40 percent, and therefore, he does not meet the schedular requirements for a TDIU. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel