Citation Nr: 20005644 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 18-23 001A DATE: January 23, 2020 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for erectile dysfunction as secondary to the service-connected depressive disorder disability is granted. Prior to May 27, 2016, a rating in excess of 10 percent for a left hip disability is denied. For the appeal period beginning July 1, 2017, a rating in excess of 50 percent for service-connected post total left hip replacement is denied. A compensable rating for a residual scar associated with the left hip replacement is denied. A total disability rating based upon individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is related to stressors that he experienced in service. 2. The evidence is at least in equipoise as to whether the Veteran’s erectile dysfunction was caused, at least in part, by his service-connected depressive disorder disability. 3. Prior to May 27, 2016, the Veteran’s left hip disability was manifested by flexion greater than 45 degrees, extension greater than 5 degrees, abduction greater than 10 degrees, and without evidence of femur impairment or ankylosis. 4. For the appeal period beginning July 1, 2017, the Veteran’s left hip disability has not been manifested by markedly severe residuals of weakness, pain or limitation of motion. 5. The left hip surgical scar is not shown to be nonlinear with an area of at least 6 square inches, to be painful or unstable, or of itself to cause any limitation of function. 6. The evidence demonstrates that the Veteran is employed. CONCLUSIONS OF LAW 1. The criteria to establish service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154(a); 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for erectile dysfunction as secondary to the service-connected depressive disorder disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Prior to May 27, 2016, the criteria for a disability rating in excess of 10 percent for a left hip disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252. 4. For the appeal period beginning July 1, 2017, the criteria for a disability rating in excess of 50 percent for a left hip disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5054. 5. The criteria for a compensable rating for a residual left hip scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DCs 7801, 7804, 7805. 6. The criteria for the assignment of a TDIU have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to June 1989, and from December 2007 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the March 2014, September 2015, May 2017, and February 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. PTSD The Veteran seeks service connection for PTSD as due to his deployment in support of Operation Enduring Freedom while stationed in Egypt. The Veteran has already been awarded a 30 percent evaluation for depressive disorder with anxiety disorder as secondary to his previously service-connected left hip disability. Post-service records include a September 2014 statement from TLC Wholeness Center. The statement indicated that the Veteran had entered psychotherapy treatment in June 2014. An evaluation was noted to have been completed and the Veteran was found to meet the DSM IV criteria for PTSD. VA treatment records also show notations of PTSD and positive PTSD screening. See e. g., April 2011 PTSD screening. In November 2013, the Veteran was found to have mild PTSD on VA psychiatric assessment related to stressors in service, to include due to bombings he witnessed. He experienced war-related dreams, hypervigilance, and intrusive thoughts. The Veteran reported several stressors during a May 2015 VA examination report. Specifically, the Veteran indicated that he witnessed the September 11, 2001 terrorist attacks while in the National Guard. He indicated that the witnessed the attacks through a window of the office of his civilian position in Brooklyn, NY—approximately 30 to 50 miles from the World Trade Center. Moreover, the Veteran stated that, while stationed in Egypt in March 2008, “a bomb went off on the Gaza strip.” This explosion was noted by the Veteran to have occurred some 60 miles from his location. The Veteran further noted that while on “homeland security detail” in 2002-2004, the Veteran was responsible for searching a train for explosives and responding to bomb threats. The examiner did not find a diagnosis of PTSD, but provided no rationale for that finding. Given the circumstances of the Veteran’s service and that he has since been diagnosed with PTSD that has been related to his in-service stressors, the Board finds that the most competent, probative, and persuasive evidence of record supports the grant of service connection for PTSD. Erectile Dysfunction Upon review of all evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s erectile dysfunction was caused or aggravated by his service-connected major depressive disorder. The evidence includes a May 2015 VA male reproductive system examination report. At that time, a diagnosis of erectile dysfunction was confirmed. Further, the examiner specifically noted that the Veteran had “PTSD and depression and subsequently developed erectile dysfunction.” In a separate portion of the examination, the examiner noted that erectile dysfunction was a known complication of PTSD and the treatment of PTSD. Although the Board notes that the Veteran has not been awarded service connection or PTSD, his service-connected depressive disorder with anxiety disorder reasonably would include similar symptoms and treatment. For these reasons, and resolving reasonable doubt in favor of the Veteran, entitlement to service connection for erectile dysfunction as secondary to the service-connected depressive disorder disability is warranted. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability Rating Criteria-Laws and Regulations Disability 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 (2018). 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Left Hip Disability Prior to the Veteran’s left hip replacement, so the period prior to May 27, 2016, a rating in excess of 10 percent for the Veteran’s left hip disability is denied. Specifically, on February 2016 VA examination the necessary showing of limitation of flexion, extension, abduction, or adduction was not demonstrated. The Veteran was shown to suffer from pain on movement, and such is accounted for by the current 10 percent rating. Otherwise, even when considering limitation of motion on repetitive movement or during a flare-up, more severe restriction of limitation of motion was not demonstrated such that a higher rating would be warranted. The Veteran’s service-connected left hip disability is otherwise rated under 38 C.F.R. § 4.71a, DC 5054, for hip replacement (prosthesis). Under DC 5054, a 100 percent rating is awarded for one year following implantation of prosthesis. After one year, a 30 percent minimum rating is provided; a 50 percent rating is warranted where there are moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent rating is warranted where there are markedly severe residuals of weakness, pain or limitation of motion; and a 90 percent rating is warranted where there is painful motion or weakness such as to require the use of crutches. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. The terms “moderately severe” and “markedly severe” as used under DC 5054 are not defined in the Rating Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderately severe” or “markedly severe,” the Board must evaluate all of the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. It is informative, however, that “moderate” is defined as “within reasonable limits; not excessive or extreme.” American Heritage Dictionary, Fifth Edition, Houghton Mifflin Harcourt Publishing Company (2016). “Marked” is defined as “clearly defined and evident; noticeable.” Id. Following prosthetic replacement of his left hip, the Veteran was provided a 100 percent rating for one year following implantation (i. e., from May 27, 2016 to June 30, 2017). Beginning July 1, 2017, he was awarded a 50 percent evaluation. See June 2019 rating decision. As such, the Board will consider whether a rating ine excess of 50 percent beginning July 1, 2017 is warranted. For the appeal period beginning July 1, 2017, the Board finds that the evidence of record does not more nearly approximate a left hip disability manifested by markedly severe residuals of weakness, pain or limitation of motion. The evidence since the May 27, 2016 left hip surgery includes a May 2017 VA examination report. At that time, the Veteran reported less pain in the hip since the 2016 surgery, but still had some pain and did not have full range of motion. The Veteran denied flare-ups of the left hip. Range of motion testing showed flexion of the left hip limited to 100 degrees, extension to 20 degrees, abduction to 30 degrees and adduction to 15 degrees. Adduction was limited such that the Veteran could not cross his legs. External rotation was limited to 40 degrees and internal rotation was limited to 20 degrees. There was no evidence of pain on weight bearing and no crepitus. Repetitive use testing did not additionally limit motion or reduce function of the left hip joint. Left hip strength was norma (5/5) in flexion, extension and abduction. There was also no ankylosis of the left hip joint. Although the examiner noted that the Veteran had no residuals associated with his left hip joint replacement, the Board finds this to be inconsistent with the evidence of record as the Veteran clearly had reduced range of motion on examination. It was also noted that the Veteran was unable to work in a position that required constant standing, walking, squatting, or climbing stairs. The Veteran’s surgical scar was not painful or unstable and did not measure 39 square cm or greater. The Veteran was afforded another VA hip examination in October 2018. The Veteran reported left hip pain associated with standing and walking for more than an hour. He also reported that he could only climb one flight of stairs. Flare-ups of the left hip joint were denied. Range of motion testing showed flexion of the left hip limited to 100 degrees, extension to 20 degrees, abduction to 35 degrees and adduction to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. External rotation was limited to 40 degrees and internal rotation was limited to 20 degrees. There was no evidence of pain on weight bearing and no crepitus. Repetitive use testing did not additionally limit motion or reduce function of the left hip joint. Left hip strength was norma (5/5) in flexion, extension and abduction. There was also no ankylosis of the left hip joint. The examiner specifically indicated that the Veteran’s residuals resulted in “moderately” severe residuals of weakness, pain or limitation of motion. The Veteran’s surgical scar did was not painful or unstable and did not measure 39 square cm or greater. During an October 2018 VA scars examination report, the examiner indicated that the Veteran had one scar on the left hip that was superficial, non-linear. It measured 12 cm by 1 cm and was not painful or unstable. VA treatment records show continued complaints of achiness and pain with changes in position of the hip. See e. g., August 2018 VA treatment record. The next higher, 70 percent rating for the left hip disability requires markedly severe residual weakness, pain or limitation of motion. No examination report (or other evidence in the record) shows manifestations of such severity. Range of motion studies consistently found less than severe limitations, to include after repetitive use testing. The Veteran also denied having flare-ups associated with the left hip during both VA examinations discussed above. Muscle strength was described as normal (i. e., there was not markedly severe weakness). While the Veteran has consistently reported pain, it has not been found to be markedly severe. Although the Veteran uses a cane to assist with ambulation, this has been found to be due to several of his disabilities, including the left hip, knee, and lumbar spine conditions. See October 2018 VA examination report. Therefore, the Veteran’s use of an assistance device for ambulation is not solely due to his residuals associated with the left hip disability. In sum, the Board finds that more than moderately severe residuals of weakness, pain or limitation of motion are not shown, and a rating in excess of 50 percent is not warranted for the appeal period beginning July 1, 2017. The Board has considered whether the surgical scar warrants a separate compensable rating, and has found it does not. A 10 percent rating would be warranted if the scar was deep and nonlinear, with an area of at least 6 square inches (39 square centimeters). The dimensions of the surgical scar (as noted above) have never been reported to be of (or approximating) such extent. The scar likewise has not been found to be painful or unstable, or to result in functional limitation (so as to warrant a compensable rating under Code 7804 or 7805). Accordingly, a separate compensable rating for the surgical scar is not warranted. 38 C.F.R. § 4.31. TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, multiple VA treatment records reflect that the Veteran is currently employed in a gainful occupation, including as noted by treatment records dated throughout 2018 and 2019. While the Veteran reported that his service-connected disabilities precluded employment beginning in 2016, the evidence does not support that contention, and in fact demonstrates a serious credibility issue with regard to that contention. Moreover, the competent and pertinent VA examination reports of record do not demonstrate a preclusion of employment due to service-connected disabilities, rather he is shown to have limitations such as due to prolonged standing or walking. The record shows that the Veteran is able to work in his profession despite those limitations. Accordingly, at this time, a TDIU is not warranted. REASONS FOR REMAND Sleep Apnea The evidence demonstrates that the Veteran’s sleep apnea may have first manifested in service. In this regard, an August 2008 service treatment record noted that the Veteran had sleep difficulties. It was indicated that the Veteran reported waking up at night due to right leg pain and left shoulder pain. He reported no gasping or shortness of breath and no complaints from peers of loud snoring. In a separate August 2008 service treatment record, the Veteran complained of “panic like behaviors.” A request for a sleep apnea workup was made. No follow-up appears to have been conducted in service. Following service, the Veteran was diagnosed with “severe” sleep apnea in an April 2014 sleep study. The Veteran has not been afforded a VA examination as it pertains to the etiology of his sleep apnea, to include whether it first manifested in service or whether it is secondary to a service-connected disability, to include the left shoulder disability. As such, a remand is required. The matters are REMANDED for the following actions: Schedule a VA examination to ascertain the likely etiology of the currently diagnosed sleep apnea. The claims file must be provided to the examiner. After examining the Veteran and reviewing the claims file, the examiner is asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea first manifested in service or is otherwise related to service. See August 2008 service treatment records. (b.) If not related to service, state whether the Veteran’s sleep apnea is at least as likely as not (50 percent or greater probability) proximately due or aggravated by a service-connected disability. **The examiner should note that the Veteran is service-connected for various orthopedic disabilities and a psychiatric disorder. He has maintained that his left shoulder and radiculopathy disabilities impact his sleep. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.