Citation Nr: 1807052 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-15 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI). 2. Entitlement to an initial compensable rating for sexual dysfunction prior to August 3, 2011. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for sleep apnea, previously claimed as a sleep disorder. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active service from July 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. These matters have also been before the Board on previous occasions. Two of the claims at issue in this appeal have also been before the United States Court of Appeals for Veterans Claims (Veterans Court). The pertinent parts of the previous actions of these authorities are described below. A November 2009 rating decision established service connection for sexual dysfunction with a non-compensable rating and an effective date of June 19, 2009, and denied service connection for a sleeping disorder and hypertension. An April 2012 rating decision denied service connection for a TBI. The sexual dysfunction and hypertension claims came before the Board in October 2012, along with the sleep disorder claim, by then claimed as OSA. The OSA claim was denied, and the question of entitlement to an initial compensable rating for sexual dysfunction was remanded for further development. A December 2012 rating decision granted a 20 percent disability rating, effective August 3, 2011. The Veteran's claim for service connection for OSA was appealed to the Veterans Court, and the Veterans Court vacated the Board's October 2012 decision and remanded that matter to the Board in a September 2013 memorandum decision. An October 2013 rating decision proposed to decrease the Veteran's disability rating for sexual dysfunction and denied entitlement to TDIU. A February 2014 rating decision implemented the reduction of the Veteran's disability rating for sexual dysfunction effective May 1, 2014. The OSA claim came before the Board again and was remanded in September 2014. The claims of entitlement to service connection for OSA, TBI, and hypertension; entitlement to an initial compensable rating for sexual dysfunction prior to August 3, 2011, (and the subsequent restoration of his compensable rating for this condition); and entitlement to TDIU came before the Board in October 2016. The Board denied entitlement to a compensable rating for sexual dysfunction prior to August 3, 2011; restored the Veteran's compensable rating that had previously been reduced; and remanded the other claims for additional development. A November 2016 rating decision effected the October 2016 Board decision with respect to the Veteran's sexual dysfunction rating. The Veteran appealed the October 2016 decision to the Veterans Court. The Veterans Court then vacated the portion of the October 2016 Board decision that denied entitlement to an initial compensable rating for sexual dysfunction and remanded that matter to the Board in May 2017 pursuant to a Joint Motion for Partial Remand (Joint Motion). The issues of entitlement to service connection for OSA and hypertension and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has been diagnosed with or suffers from a TBI or residuals of a TBI as a current disability during or proximate to the appeal period. 2. The record does not contain evidence documenting a date on which a penile deformity was manifest prior to August 3, 2011. CONCLUSION OF LAW 1. The criteria for service connection for a traumatic brain injury are not met. 38 U.S.C. §§ 1110; 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for a compensable rating prior to August 3, 2011, for sexual dysfunction are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§, 4.31, 4.115(b), Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Here, appropriate notice was first provided to the Veteran by letter in August 2009, and additional notices were provided at various times in subsequent letters at various times throughout the proceedings. As to VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the Veteran's claims, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and post-service VA treatment records have been obtained and associated with the claims file. Where the Veteran has either provided VA with or identified and authorized VA to obtain non-VA treatment records, VA has associated those records with the claims file or made the reasonable attempts to obtain the identified records. Appropriate VA examinations regarding the Veteran's claims for sexual dysfunction and a TBI have been provided in September 2009 and December 2016 respectively. While the Veteran has alleged inadequacies with the examinations or opinions pertaining to other matters on appeal and has filed legal briefs at various times generally discussing the legal requirements of an adequate VA examination, the Veteran has not specifically argued that the examinations conducted and opinions generated regarding the sexual dysfunction and TBI claims are inadequate in any way. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. II. Service Connection for TBI Service connection may be established for a disease or injury incurred in or caused or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As an initial matter, the Board observes that an additional document with evidence related to the Veteran's TBI claim was added to the record in November 2017. This post-dates the most recent Supplemental Statement of the Case (SSOC), which was issued in March 2017. Generally, remand is necessary where additional evidence relating to a claim is added to the record after the most recent Statement of the Case (SOC) or SSOC has been prepared by the AOJ. See 38 C.F.R. §§ 19.31, 19.37 (2017). However, where, as here, the evidence is cumulative of evidence that was already before the AOJ at the time the last SOC or SSOC was produced, remand is not necessary. 38 C.F.R. § 19.37(b). Here, the evidence received simply recounts the manner in which the Veteran was injured - the armor unit with which he was serving encountered an explosive device and the detonation caused him to hit his head in 1970. The description provided in this document is nearly identical to previous descriptions of the Veteran has given of the circumstances surrounding his head injury, including the account given to the December 2016 VA examiner. Consequently, the Board finds that the evidence in this document is duplicative of evidence that was before the AOJ at the time that the March 2017 SSOC was issued, and remand is unnecessary. 38 C.F.R. § 19.37(b). Additionally, as explained in more detail below, the critical issue in this appeal is not whether the Veteran hit his head in-service in the manner he describes, but rather whether this incident resulted in a present disability of TBI or residuals of a TBI. The Board accepts as true that the events recounted by the Veteran wherein he hit his head. However, the Board finds that the evidence of record weighs against a finding that the Veteran suffered a TBI or continues to suffer from residuals of a TBI as a result of this event. The Veteran's service treatment records do not contain any history of diagnosis, treatment, or symptoms related to a TBI. His medical examination, conducted in May 1971 in preparation for the end of his term of service, contains no indication of a diagnosis, treatment, or symptoms for a TBI. The Veteran's own report of medical history in May 1971 is similarly silent for any complaints related to a TBI. The Veteran's post-service treatment records are similarly silent for a diagnosis or treatment for a TBI, residuals of a TBI, or related symptoms. A May 2013 VA examination for the Veteran's psychological conditions indicates that no TBI had been diagnosed. Finally, the December 2016 examination also indicates that the Veteran did not have and had never had a TBI or any residuals of a TBI. The examiner acknowledged the Veteran complained of the onset of memory deficits and difficulties with concentration, but explained that these complaints were not consistent with the Veteran suffering a TBI in 1970 given the amount of time that had passed between the reported TBI and the onset of the reported symptoms. Neuropsychological testing was also performed and did not indicate the presence of a TBI or residuals of a TBI. The Board observes that the Veteran has also claimed, and received compensation for, these symptoms in relation to his posttraumatic stress disorder (PTSD). Based on this evidence, the Board finds that service connection for a TBI must be denied. The most probative evidence of record indicates that the Veteran has not, at any time relevant to this appeal, manifested a TBI or residuals of a TBI. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). Because the record does not show that the Veteran's in-service injury has resulted in any disability during the relevant time period, the Board finds that there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Hence, service connection for a TBI is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt doctrine does not apply where the evidence preponderates against a claim. Ortiz, 274 F.3d 1361 (Fed. Cir. 2001). III. Entitlement to a Compensable Rating for Sexual Dysfunction Prior to August 3, 2011. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Deformity of the penis with erectile dysfunction warrants a 20 percent evaluation. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2016). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran initially sought service connection for sexual dysfunction in June 2009. A September 2009 VA examination documents that the Veteran specifically complained of erectile dysfunction and indicated that this problem had its onset in the 1970s and had become progressively worse throughout the course of his life. The etiology of the Veteran's erectile dysfunction could not be determined, but this examination documented that the Veteran's penis was normal on examination. The examiner concluded that the Veteran's erectile dysfunction was permanently aggravated by his service-connected mental health condition. The Veteran did not report an abnormal curvature of his penis at this time. The Veteran sought treatment for his erectile dysfunction in November 2009. He received a prescription. The Veteran did not describe any abnormality in the appearance of his penis at that time. In November 2010, the Veteran sought to change his prescription for his erectile dysfunction because it was ineffective. He made no mention of any abnormality in the appearance of his penis at that time. On August 3, 2011, the Veteran sought treatment for his erectile dysfunction. At this visit, for the first time, the Veteran reported that his penis had an abnormal curvature. The subsequent examination documented a peyronie's plaque. The Veteran stated that this condition had been present for approximately two years. With this evidence in mind, the question before the Board is when the Veteran's deformity began. The Veteran, though a lay person, is competent to report symptoms that are readily visible and to describe the timing of their onset. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that a veteran is competent to provide testimony to establish the occurrence of medical symptoms) (Lance, J. concurring). However, the credibility of the Veteran's report that his penis had had an abnormal curvature for approximately two years prior to the August 3, 2011 examination is a separate question. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board notes that the objective evidence of record establishes that the Veteran's penile deformity was not present in September 2009 at the time of the VA examination. Consequently, to the extent that the Veteran's statement that his condition had been present for "approximately two years" could be read as "two years" or "slightly more than two years," the Board finds that this is not consistent with the medical evidence, and therefore not credible. However, "approximately two years" can also be understood as "slightly less than two years." In this regard, the Board finds that there is some reason to doubt the Veteran's account that his condition had been present for "nearly" or "slightly less than" two years. Notably, the Veteran had sought treatment for erectile dysfunction on a few occasions prior to the August 3, 2011, visit where the Veteran first reported his deformity and the length of time that it had been present. As noted above, the Veteran did not mention this deformity on any of the occasions where he sought treatment for the condition of his penis. One of those occasions was approximately 9 months prior to the August 2011 visit. In light of the fact that the Veteran had sought treatment for this body system so recently without mentioning this deformity, the Board finds that the Veteran's report that his penile deformity had been present for approximately two years lacks credibility. The Board is mindful that the mere absence of corroborating medical evidence is not grounds for finding lay statements lack credibility, though it is permissible to use that lack of corroborating evidence as a factor. See Buchanan, 451 F.3d at 1336 (stating that the absence of corroborating medical evidence may be used as a factor to assess credibility). Nevertheless, here there is both a lack of corroborating medical evidence and evidence that the Veteran was not seeking treatment for a deformity he would later allege had existed during the relevant time period. Thus, the Board's finding that the Veteran's description of the onset of this deformity approximately two years prior to August 2011 lacks credibility is based on this combination of factors - the lack of contemporaneous medical evidence, and the fact that the Veteran made no complaints about this condition while seeking treatment for a related problem. In addition to the lack of credibility the Board assigns to the Veteran's statement that this condition had been present for approximately two years, the Board also finds that it does not provide very much probative value for the Board in assessing the date that this deformity had its onset. In this regard, the Board finds that its lack of probative value comes from its imprecision. While perfect precision in recalling exactly when a particular condition had its onset would never be required, here the Veteran has provided a vague report that the condition had been present for approximately two years that is either directly or indirectly contradicted by the medical evidence of record relating to this body system. As such, the Board finds that it cannot use this evidence to intelligently or defensibly identify any date on which the Veteran's penile deformity and peyronie's plaque had its onset other than the date where a VA physician identified it on examination. Consequently, the Board finds that the evidence of record does not establish entitlement to a compensable rating prior to August 3, 2011. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule cannot aid the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a TBI is denied. A compensable disability rating prior to August 3, 2011 for sexual dysfunction is denied. REMAND The Board finds that an additional remand is required before an adjudication of the claims for service connection for OSA, hypertension, and TDIU can be completed. With regard to the claims for service connection, the Board finds that the medical opinions of record are not adequate to guide the Board in deciding these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (providing that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). First, with regard to the Veteran's claim for OSA, the Board notes that the Veteran has claimed this condition as both a direct service-connected condition and as secondary to his PTSD, to include as a result of obesity brought on by the medications he takes to control his PTSD symptoms. The December 2016 VA examination is the only examination that addresses a theory of entitlement on a direct basis. The rationale given for this opinion is that the symptoms and diagnosis of OSA were not noted until long after the Veteran left service. However, service connection can be established for a condition that is caused by service, even if the symptoms do not until much later. 38 C.F.R. § 3.303 (2017). Consequently, the Board finds that an addendum opinion must be provided addressing this question. Second, with regard to the Veteran's hypertension claim, the Veteran has also claimed this condition on both a direct basis and as secondary to his PTSD. No opinion in the record discusses the question of the direct service-connection for this condition. With regard to the Veteran's claim for TDIU, the Board finds that this claim cannot be resolved until the OSA claim has been resolved. The Veteran has argued that his ability to work and make money has been impacted by the symptoms of his PTSD including memory deficits and difficulty concentrating. The records of his treatment also indicate that the Veteran's daytime somnolence also affected his work as he consistently reported that he would fall asleep in his office. While VA decision makers had previously analyzed this daytime somnolence as part of the Veteran's PTSD condition, the Veterans Court expressly rejected VA decision makers' previous finding that the Veteran's daytime somnolence was due solely to his PTSD in the September 2013 memorandum decision. Consequently, because of the effect that his daytime somnolence has had on his work, the Board finds that the question of entitlement to TDIU cannot be adequately analyzed until the conditions that bear on that symptom are resolved. See Parker v. Brown, 7 Vet. App. 116 (1994) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding/updated VA treatment records that are not already associated with the claims file that are relevant to the claims on appeal. 2. After the above records development is completed, arrange for addendum opinions from an appropriate examiner or examiners regarding the nature, severity, and etiology of the Veteran's OSA and hypertension conditions. If any examiner of whom an opinion is requested determines that the requested opinion cannot be provided without an additional examination, the Veteran should be scheduled for an appropriate examination. The examiner should provide a complete rationale for each opinion given, and cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. The examiner should address the following: (a) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veterans OSA was incurred in or caused or aggravated by the Veteran's service or his service-connected PTSD, to include the medications taken for the Veteran's PTSD or side effects of those medications. Because a disease may be service-connected even if it is diagnosed after service has ended, if the examiner provides a negative opinion, the examiner's rationale should include additional information beyond the length of time that transpired between the end of the Veteran's term of service and symptoms or diagnosis. (b) In the event that the examiner provides a negative opinion regarding OSA, the examiner should address whether the Veteran's daytime somnolence documented in the record can be attributed to his OSA or his PTSD or if it is not possible to render such a distinction. (c) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred in or caused or aggravated by the Veteran's service or his service-connected PTSD. Because a disease may be service-connected even if it is diagnosed after service has ended, if the examiner provides a negative opinion, the examiner's rationale should include additional information beyond the length of time that transpired between the end of the Veteran's term of service and symptoms or diagnosis. 3. Once the development described above has been completed, undertake any further development that may be indicated. Then, readjudicate the claims on appeal. If any claim remains denied, or less than the full benefit sought is granted, provide the Veteran and his attorney with an appropriate supplemental statement of the case and the requisite time to respond. Then, if the claims file is otherwise in order, return the claims to the Board for further appellate review. 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. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs