Citation Nr: 20008487 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 07-15 847 DATE: January 31, 2020 ORDER Service connection for right knee disability is denied. Service connection for left knee disability is denied. Service connection for erectile dysfunction is granted. A rating in excess of 20 percent for right ankle disability is denied. A rating in excess of 20 percent for left ankle disability is denied. REMANDED A rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression is remanded. A rating in excess of 10 percent for degenerative arthritis of the spine is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The probative and competent evidence of record is against finding the Veteran’s right knee disability began in service, is related to service, or is secondary to his service-connected bilateral ankle or back disabilities. 2. The probative and competent evidence of record is against finding the Veteran’s left knee disability began in service, is related to service, or is secondary to his service-connected bilateral ankle or back disabilities. 3. The probative and competent evidence of record is at least in equipoise as to whether the Veteran’s erectile dysfunction was caused by his service-connected PTSD with depression and treatment. 4. The Veteran’s right ankle disability was not manifested by ankylosis during the appeal period. 5. The Veteran’s left ankle disability was not manifested by ankylosis during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for a rating in excess of 20 percent for right ankle disability have not been 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) 5271. 5. The criteria for a rating in excess of 20 percent for left ankle disability have not been 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, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1982 to March 1988. The Veteran appeared for a hearing before the Board in July 2013 and discussed entitlement to an increased rating for right ankle and left ankle, and entitlement to service connection for the right knee, left knee, and erectile dysfunction. The hearing transcript is associated with the claims file. In a May 2018 letter, the Veteran was advised that the Veterans Law Judge (VLJ) who conducted the July 2013 hearing was no longer employed by the Board and he therefore had the right to an additional hearing before a different VLJ. 38 U.S.C. § 7107(c), 38 C.F.R. § 20.707. The Veteran elected to have another Board hearing. In a December 2019 letter, the Veteran was informed that he requested an optional Board hearing and informed him of options to save time. In January 2020, the Veteran elected to withdraw his request for hearing. As such, the Board deems the Veteran’s request for another Board hearing withdrawn. With regard to the TDIU claim, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has submitted numerous Application for Increased Compensation based on Unemployability forms during the appeal period for his claims for increased ratings for bilateral ankles. This evidence expressly raises the issue of TDIU. Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service connection for right knee disability is denied. 2. Service connection for left knee disability is denied. The Veteran contends he has a bilateral knee disability that is secondary to his service-connected ankle disability. The Board recognizes the Veteran has bilateral knee disability. See May 2009 VA examination. Therefore, the question before the Board is whether the Veteran has a knee disability that began in service, is related to service, or is secondary to his service-connected disabilities. Service treatment records (STRs) do not show, nor has the Veteran reported, complaint, treatment, or diagnosis of knee disability during service. Post-service, a July 2002 VA treatment record reported right knee pain. A January 2007 VA treatment visit reported bilateral knee pain and assessed degenerative joint disease (DJD) and patellofemoral syndrome. A March 2018 VA examiner opined the Veteran’s bilateral knee disability was less likely than not proximately due or aggravated beyond its natural progression by the Veteran's service-connected ankles or back. The examiner’s rationale was that examination of the ankles continued to show no deviation of the Achilles tendon or abnormalities of the ankles, which would cause excessive wear and tear on the knees. Thus, the ankles should not be affecting the knee biomechanics Additionally, the examiner stated that examination of the back showed no leg weakness or abnormalities of the back, which would cause excessive wear and tear on the knees. The examiner stated that the back should not be affecting the knee biomechanics because it is not anatomically possible. The Board gives great probative weight to the March 2018 VA medical opinion. The opinion is credible because it was made after an in-person examination, based on an accurate medical history, and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, there is not competent evidence supporting the Veteran has a knee disability proximately due to or aggravated beyond its natural progression by his service-connected disabilities. The Board gave limited weight to a May 2009 VA medical opinion that found the Veteran’s bilateral knee disability was not related to his bilateral ankle disability. The opinion did not discuss whether the Veteran’s knee disabilities were as likely as not aggravated beyond its natural progression by his service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) The Board considered the Veteran’s lay statements that his bilateral knee disability is secondary to his service-connected ankles and back. Although the Veteran is competent to report knee pain, he is not competent to opine as to the etiology of his current knee disability, as such an opinion requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Accordingly, service connection for right knee disability and service connection for left knee disability is denied. 3. Service connection for erectile dysfunction is granted. The Veteran contends he has erectile dysfunction that is related to his service-connected disabilities and/or the medications used to treat his service-connected disabilities. The Board recognizes the Veteran has erectile dysfunction. Therefore, the question before the Board is whether the Veteran has erectile dysfunction that began in service, is related to service, or is secondary to his service-connected disabilities. STRs do not show complaint, treatment, or diagnosis of erectile dysfunction. Post-service, at a June 2009 VA treatment visit, the Veteran reported his erectile dysfunction started one to two years prior. The Veteran reported the onset of his erectile dysfunction was at the same time he started taking medications for depression. The clinician stated the proximate and inciting cause of his erectile dysfunction appears to have been hypertension and depression, as well as the medications used to treat hypertension and depression. A January 2017 VA treatment visit assessed the Veteran’s erectile dysfunction was more likely than not due to a combination of diabetes and his service-connected PTSD with depression and the medication used to treat his PTSD with depression. An April 2018 VA examiner found the Veteran’s erectile dysfunction is less likely as not caused or aggravated beyond normal progression by his service-connected lower extremity or psychiatric disabilities, to include due medication taken for these disabilities. The clinician stated it was reasonable to assume that erectile dysfunction was due to hypertension and later was contributed to by his radical prostatectomy, neither which is service-connected. The Board finds the competent and probative evidence of record is at least in equipoise as to whether the Veteran’s erectile dysfunction was caused by his service-connected PTSD with depression and treatment. The June 2009 and January 2017 VA examiner opinions are consistent with the Veteran’s report that the onset of his erectile dysfunction was at the same time he started taking medications for depression, which the Veteran is competent to report and the Board finds credible. Accordingly, resolving reasonable doubt in favor of the Veteran, service connection for erectile dysfunction is granted. Increased Rating 4. A rating in excess of 20 percent for right ankle disability is denied. 5. A rating in excess of 20 percent for left ankle disability is denied. The Veteran’s right ankle disability and left ankle disability are each assigned a 20 percent rating under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Under DC 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. The Veteran is in receipt of the highest schedular rating for limited motion of the ankle and the Board does not find a basis to award a higher rating. The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. Under DC 5270, a 40 percent evaluation may be assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. A 30 percent rating is assignable for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. The evidence does not support, nor has the Veteran or his representative contended, the Veteran’s ankle disabilities produced ankylosis during the appeal period. The evidence indicates the Veteran maintained some motion of the ankle. A 20 percent rating is the maximum rating for limitation of motion of the ankle. A higher rating due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Accordingly, a rating in excess of 20 percent for right ankle disability or left ankle disability is denied. REASONS FOR REMAND 1. A rating in excess of 30 percent for PTSD with depression is remanded. 2. A rating in excess of 10 percent for degenerative arthritis of the spine is remanded. Regarding the claims for entitlement to an increased rating for PTSD and entitlement to an increased rating for degenerative arthritis of the spine, the Veteran submitted a timely February 2016 VA Form 21-0958, notice of disagreement, in response to a January 2016 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 3. Entitlement to TDIU is remanded. Evidence shows the Veteran completed coursework to obtain a bachelor’s degree during the appeal period and is expected to obtain a master's degree in 2020. More detailed information regarding this coursework is necessary to adjudicate the claim. Remand will allow the RO to obtain this information from the Veteran or his attorney. The matters are REMANDED for the following action: (Continued on the next page)   1. Send the Veteran and his attorney a statement of the case that addresses the issues of entitlement to a rating in excess of 30 percent for PTSD with depression and entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine. 2. Request detailed information from the Veteran or his attorney regarding his bachelor’s degree and master’s degree coursework during the appeal period, to include dates of enrollment, credit hours per semester, and whether any accommodations were made for the Veteran. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.