Citation Nr: 19148047 Decision Date: 06/20/19 Archive Date: 06/19/19 DOCKET NO. 18-22 849A DATE: June 20, 2019 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a compensable evaluation for erectile dysfunction is denied. The reduction in the disability evaluation assigned for residuals of prostate cancer from 100 percent to 60 percent effective April 1, 2015 was proper; the appeal is denied. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for papillary urothelial carcinoma is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The Veteran does not have penile deformity. 3. A December 2014 rating decision reduced the evaluation for the Veteran’s service-connected residuals of prostate cancer from 100 percent to 60 percent, effective April 1, 2015. 4. At the time of the December 2014 reduction, there was no local recurrence or metastasis; the Veteran has been assigned the highest schedular evaluation for voiding dysfunction without renal dysfunction. 5. During the pendency of the appeal period, the Veteran’s PTSD with depression, anxiety, sleep disturbance, insomnia, irritability, anger episodes, and restlessness is manifested by at most occupational and social impairment with reduced reliability and productivity. 6. The Veteran is service connected for a voiding dysfunction related to prostate cancer rated at 60 percent, PTSD rated at 50 percent, tinnitus rated as 10 percent disabling, and erectile dysfunction rated as noncompensable. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for an initial compensable rating for erectile dysfunction associated with prostate cancer have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522 (2018). 3. The reduction of the disability evaluation for the Veteran’s service-connected residuals of prostate cancer from 100 percent to 60 percent effective April 1, 2015 was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.115b, Diagnostic Code 7528. 4. The criteria for a disability rating in excess of 50 percent for PTSD with depression, anxiety, sleep disturbance, insomnia, irritability, anger episodes, and restlessness have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to August 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2014, January 2015, March 2015 and January 2016 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including malignant tumors and organic diseases of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral hearing loss. Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus is an “organic disease of the nervous system” subject to presumptive service connection under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 where there is evidence of acoustic trauma and nerve damage). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to the claim for hearing loss. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. In this case, the Veteran argued that he has bilateral hearing loss as a result of his military service. At the outset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. See December 2014 VA Examination. As such, the first element of service connection is met. The Board also concedes that the Veteran was exposed to some degree of noise during active service. The Veteran has contended in a May 2014 statement that he was assigned to the artillery unit while in service and specifically was exposed to small arms and mortar fire on a regular basis without ear protection. The Veteran’s service personnel records confirmed that he served in the artillery unit. See Form DD 214. What remains for consideration is whether the Veteran’s current bilateral hearing loss is related to his in-service noise exposure. A review of service treatment records notes normal ears and drums with no complaints, symptoms, signs, or diagnoses of bilateral hearing loss. The Veteran’s treatment records and August 1969 separation examination are absent any complaints of hearing loss. The Veteran was not diagnosed with bilateral hearing loss until the December 2014 VA examination, approximately 45 years after service. In May 2014 the Veteran submitted a statement by Dr. Y., a chiropractor, stating that the Veteran’s exposure to acoustic trauma in service more likely than not is directly and causally related to his current bilateral hearing loss. There was no rationale in support of the opinion. In the December 2014 VA examination, the examiner opined that the Veteran’s bilateral hearing loss is less likely as not caused by or a result of an event in military service. The examiner explained that the Veteran’s hearing thresholds at the time of separation were within normal limits. According to the 2005 Institute of Medicine report concluding that based on current knowledge noise induced hearing loss occurs immediately and not weeks, months or years after the exposure event. As such, the examiner determined that the Veteran’s bilateral hearing loss is less likely than not related to the Veteran’s military noise exposure. The Board acknowledges the May 2014 positive opinion by Dr. Y., but as he did not provide a sufficient rationale for the opinion provided, it is afforded little probative value. Further, the Board finds the December 2014 VA examiner’s conclusion persuasive and probative that the Veteran’s bilateral hearing loss is less likely than not caused by or a result of his military noise exposure. The opinion is based on a review of the Veteran’s service treatment records and is supported by a rationale and clinical expertise. The Board acknowledges the Veteran’s lay statement that military noise exposure caused his bilateral hearing loss. However, such an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As reflected above, the Veteran did not report hearing loss upon his separation from service. It is reasonable to conclude that if the Veteran had experienced hearing loss on a continual basis since service, that he would have reported such at some point. Accordingly, the Board does not find that the Veteran experienced hearing loss due to service to be persuasive and they are afforded little probative value. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran’s bilateral hearing loss and service and the claim must be denied. Increased Rating Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 2. Entitlement to a compensable evaluation for erectile dysfunction. In May 2014 the Veteran was granted service connection for erectile dysfunction associated with prostate cancer, status post prostatectomy and a noncompensable rating was thereto assigned pursuant to 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522. The Veteran submitted a notice of disagreement to such rating in April 2015 and perfected an appeal to such. There is no diagnostic code which deals with erectile dysfunction exclusively. Diagnostic Code 7522 concerns penis deformity, with loss of erectile power. Under Diagnostic Code 7522, a 20 percent rating is assigned for deformity of the penis with loss of erectile power. No other disability rating is provided. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent rating, a zero percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. In order for a compensable rating to be assigned under Diagnostic Code 7522, deformity of the penis must be demonstrated. In this regard, the Veteran was afforded VA genitourinary examinations in December 2014. Notably, the Veteran declined examination of his penis, testes, epididymis, and prostate during the December 2014 examination. As such, the VA examiners were unable to determine whether the Veteran had a penile deformity. In any event, the remainder of medical evidence is absent any finding of penile deformity, and the Veteran does not contend that he has such. Further, if the Veteran contended that he has a penile deformity, the Board notes that he was afforded VA genitourinary examinations but in particular declined examination of his penis, testes, epididymis, and prostate in December 2014. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (“the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence”). The Board’s decision to not remand the appeal to obtain another VA examination to determine whether the Veteran has a penile deformity is supported by the fact that the AOJ made a sufficient attempt to obtain such information. Therefore, the evidence does not show and the Veteran does not otherwise assert that he experiences penile deformity. For the reasons stated above, the preponderance of the evidence is against a compensable rating for the Veteran’s erectile dysfunction associated with prostate cancer, status post prostatectomy. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. Propriety of reduction from 100 percent to 60 percent for the residuals of prostate cancer. The Veteran was originally awarded a 100 percent evaluation for his service-connected prostate cancer pursuant to Diagnostic Code 7528. See 38 C.F.R. § 4.115b. In December 2014, this evaluation was reduced to 60 percent, effective April 1, 2015. The Veteran has appealed this reduction, asserting the previous 100 percent evaluation should be restored. The Board notes that the claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 because the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528 contain a temporal element for continuance of a 100 percent rating for residuals of prostate cancer. Therefore, the RO’s action was not a “rating reduction” as that term in commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). In short, the Board must only determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under Diagnostic Code 7528. Initially, the Board observes the RO complied with the procedural safeguards regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction in May 2014. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. Pursuant to Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b. At a December 2014 VA examination, the Veteran was noted to be in remission for his service-connected prostate cancer. He was noted to experience voiding dysfunction without renal (kidney) dysfunction. In light of the above, the medical evidence clearly indicates that, at the time of the reduction, the Veteran’s prostate cancer was in remission without local reoccurrence or metastasis. As such, the Board finds that the discontinuance of a 100 percent rating for residuals of prostate cancer was proper and restoration of a 100 percent rating is not warranted. As a final note, the Board observes that, at 60 percent disabling, the Veteran has been awarded the maximum schedular evaluation for voiding dysfunction without renal dysfunction as residuals of prostate cancer pursuant to 38 C.F.R. § 4.115a. 4. Entitlement to an evaluation in excess of 50 percent for PTSD. The Veteran was granted service connection for PTSD in a January 2015 rating decision and assigned a 50 percent disability rating. He submitted a notice of disagreement to such rating in April 2015, asserting that his PTSD was worse than the 50 percent assigned, and perfected an appeal as to such issue. The Veteran’s PTSD is rated as 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent rating requires total occupational and 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; or memory loss for names of close relatives, own occupation, or own name. A 70 percent rating requires 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); or inability to establish and maintain effective relationships. A 50 percent rating requires 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; or difficulty in establishing effective work and social relationships. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. In May 2014 Dr. Y. provided an evaluation of the Veteran’s PTSD, finding him to have PTSD symptoms which included insomnia, sleep deprivation, anxiety, isolation, memory loss, hypervigilance, depression and memory loss. He had no violent ideations. Dr. Y. noted that the Veteran was under the evaluation of another appropriate mental health professional with regard to his PTSD. He noted that he did not treat PTSD himself, but based on his experience with patients who had PTSD found that the Veteran’s PTSD was likely related to his service. In May 2014 the Veteran had a private psychological evaluation from W.A. In that evaluation the Veteran reported experiencing recurrent intrusive thoughts related to service. He reported he had incoherent dreams characterized by nightmares. He described a history of intensive effort geared towards the avoidance of thoughts, feelings, conversations, activities, places and people associated with his traumatic experiences. Dissociative memory was apparent. The Veteran has demonstrated marked problems with insomnia, as evidenced by his intermittent difficulties with sleep onset as well as his persisting problems with intermittent waking and terminal waking. The Veteran’s tendencies towards withdrawal superseded his problems with irritability and angry outbursts. Concentration problems were reported in addition to hypervigilance, in the form of tendency to monitor others in public. Suicidality and homicidally were not apparent. The Veteran was also afforded a VA examination in December 2014. At that examination the examiner diagnosed the Veteran with PTSD with recurrent, abbreviated episodes of depression with limited symptoms primarily associated with the Veteran’s medical status and job loss. The examiner found that the Veteran also had a diagnosis of specified depressive disorder and that it was not possible to differentiate what portion of each symptoms is attributable to each diagnosis. The examiner found occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks. The examiner noted that based on his reports the Veteran continued to reside with his wife who he married in 1971 and that he was now retired from a clerical job position. The Veteran had no biological children but has maintained positive contact with two adult stepchildren and three grandchildren. He reported that his social life was somewhat limited and that included time with the neighbors as well as golfing and fishing. He also reported attending church at times and that he was involved with a local veterans’ association also. The Veteran stated that he had not worked since 2012 when he was the maintenance supervisor of a large commercial port. He emphasized the significant stress associated with such position and reported that previously he had worked successfully in a variety of commercial building maintenance positions and also owned his own welding and piping business for years. The examiner noted that the Veteran’s activities were somewhat limited because of his medial issues however he remained active in golfing, fishing and woodworking. Antidepressant medication was prescribed in 2012 but that the Veteran soon discontinued this medicine and he was not currently on any form of mental health treatment. The Veteran’s reported symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Additionally, the examiner noted that the Veteran exhibited irritability, impatience, lethargy and limited social interaction. The Veteran appeared appropriately dressed for the evaluation and behaved in a cooperative way. No psychotic symptoms were displaced, and an average level of intelligence was estimated in the Veteran’s case. The Veteran also exhibited intermittent depressive symptoms but his emotional difficulties were not so significant that they limited his employability. His reported day to day activities now included productive as well as pleasurable matters. Based on the foregoing, the Board finds that the Veteran is not entitled to a higher 70 percent disability rating for his PTSD. In this regard, the Board notes that the Court of Appeals for the Federal Circuit (Federal Circuit) held in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) that “in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Board acknowledges the medical evidence documenting the Veteran’s impaired impulse control and irritability, in addition to difficulty adapting to stressful circumstances which are criteria consistent with a 70 percent rating. However, the evidence indicates that during the period under consideration, the Veteran did not demonstrate symptoms such as a neglect of personal appearance and hygiene, near-continuous panic or depression, obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; and spatial disorientation. On the contrary, the December 2014 VA examination report indicates that the Veteran’s hygiene was essentially normal, he did not endorse obsessional rituals which interfered with routine activities, his speech was within normal limits, and he was oriented during examinations. Moreover, the Board finds that an inability to establish and maintain effective relationships is not demonstrated during the period under consideration. While the Board acknowledges the Veteran’s report of difficulty managing interactions with others in the December 2014 VA examination, he reported that he has had a good relationship with and resides with his wife of over 40 years and he attended church and spends time with his stepchildren, grandchildren and neighbors. As such, while the Board acknowledges the Veteran’s social impairment, the evidence does not indicate an inability to establish and maintain effective relationships during the period under consideration. Importantly, although the Veteran reported that his most recent job as a maintenance supervisor had significant stress, the evidence does not reflect that he is unable to work in a less stressful environment due to his PTSD. It is noted that the Veteran previously worked successfully in a variety of commercial building maintenance positions and owned his own business for years. The Board finds it significant that the VA examiner concluded that his PTSD resulted in no more than occupational impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In light of the foregoing, the Board concludes that the evidence of record does not show that his overall level of severity more nearly approximates the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130 for the period on appeal. Therefore, an increased evaluation for PTSD in excess of 50 percent is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for papillary urothelial carcinoma is remanded. The Board takes note that in March 2016 the Veteran submitted a positive opinion by Dr. S.G., stating that the Veteran has transitional cell cancer and that such cancer is as likely as not related to agent orange exposure. No rationale was provided in support of the opinion. In July 2018, Dr. C.B. stated that agent orange is a known carcinogen with biologically plausible pathways to induce cancer. He indicated that the most recent publication of the Institute of Medicine documents that there are more studies that have a relative risk greater than or equal to 1 for the induction of renal cancer. The Board finds this sufficient evidence to trigger the duty to assist and remand for a VA opinion. 2. Entitlement to TDIU is remanded. As the claim for service connection is being remanded for further development, the Board will defer adjudication on the claim for TDIU until the service connection claim has been adjudicated. These matters are remanded for the following reasons: 1. Obtain a VA opinion that addresses whether it is at least as likely as not that the Veteran’s claim for papillary urothelial carcinoma is etiologically related to his presumed exposure to herbicides during service. In answering the above, the examiner should consider the July 2018 opinion of Dr. Bash as well as the current findings of the Institute of Medicine regarding the Veteran’s claim and any relationship to herbicide exposure. 2. Thereafter, readjudicate the claims on appeal. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.