Citation Nr: 21003222 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-31 568 DATE: January 21, 2021 ORDER Entitlement to a compensable rating for erectile dysfunction is denied. Entitlement to a rating in excess of 60 percent for urinary frequency and incontinence status post radical prostatectomy is denied. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 9, 2014, and in excess of 70 percent since December 9, 2014 is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) from December 9, 2014 is granted. FINDINGS OF FACT 1. The Veteran’s loss of erectile power is not accompanied by a penile deformity. 2. The maximum schedular rating assignable for urine leakage, frequency, and obstructed voiding, has been assigned for residuals of a malignant neoplasm of the prostate gland. 3. The overall evidentiary record shows that the severity of the Veteran’s PTSD most closely approximated the criteria for a 30 percent disability evaluation for the period prior to December 9, 2014, and 70 percent since December 9, 2014. 4. Resolving all reasonable doubt in favor of the Veteran, he was rendered unable to maintain gainful employment due to his service-connected PTSD from December 9, 2014. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115(b); Diagnostic Code (DC) 7599-7522. 2. The criteria for entitlement to a rating in excess of 60 percent for urinary frequency and incontinence status post radical prostatectomy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.344, 4.115a, Diagnostic Code (DC) 7527. 3. The criteria for entitlement to a rating in excess of 30 percent for PTSD from prior to December 9, 2014, and in excess of 70 percent since December 9, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 4. The criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) from December 9, 2014 have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1966 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a September 2020 Board hearing. A transcript of that hearing is associated with the electronic claims file. 1. Entitlement to a compensable rating for erectile dysfunction During the September 2020 Board hearing, the Veteran testified to the difficulties and frustration of his erectile dysfunction. In this case, the Veteran's erectile dysfunction is rated under 38 C.F.R. § 4.115b, DC 7599-7522. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the Board notes that there is no specific DC for erectile dysfunction, and the closest analogous DC is DC 7522. Under DC 7522, two elements are required for a disability to qualify as compensable, i.e., warranting a 20 percent rating: there should be competent evidence establishing that the Veteran suffers from penile deformity, and there should also be competent evidence showing that he suffers from loss of erectile power. Here, the evidence is not in dispute that the Veteran has suffered from loss of erectile power during the period on appeal. Therefore, for the Veteran to qualify for a compensable rating under DC 7522, the evidence has to show that he has suffered from penile deformity. "Deformity" under DC 7522 means "a distortion of the penis, either internal or external," based on the ordinary meaning of the term, as gleaned from Dorland's Illustrated Medical Dictionary. Williams v. Wilkie, No. 16-3252, 2018 U.S. App. Vet. Claims LEXIS 1037, at *9 (Aug. 7, 2018). In reviewing all of the urology notes on file, there is no evidence to suggest that the Veteran's penis was deformed either internally or externally within the meaning of Williams v. Wilkie. On the April 2014 NOD, the Veteran stated that he should be entitled to a Special Monthly Compensation (SMC) due to his erectile dysfunction. The Veteran was granted SMC based on loss of use of a creative organ in a November 2013 rating decision, with an effective date of April 30, 2012. Therefore, the maximum benefit allowed has been obtained. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a rating in excess of 60 percent for urinary frequency and incontinence status post radical prostatectomy The Veteran was initially granted a 30 percent disability rating for urinary frequency and incontinence. See November 2013 rating decision. The Veteran has since presented evidence that determined he is entitled to a higher rating. The highest rating, 60 percent, requires the use of an appliance or the use of absorbent materials that must be changed more than 4 times a day. The Veteran was granted a 60 percent evaluation, effective April 30, 2012 in the February 2018 rating decision. A 60 percent rating is the maximum rating available for urine leakage, and ratings in excess of 60 percent are not available under the Rating Schedule for urinary frequency or obstructed voiding. 38 C.F.R. § 4.115b. As this is the highest schedular evaluation allowed based on voiding dysfunction, this represents a full grant of benefits sought on appeal for this issue. 3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from April 30, 2012, and in excess of 70 percent since December 9, 2014 The Veteran contends he is entitled to a 100 percent disability rating due to the symptoms from PTSD. By way of background, The Veteran was initially granted service connection for PTSD in a November 2013 rating decision, effective April 30, 2012. He presented a claim for an increased rating on an April 2014 notice of disagreement (NOD). In a June 2016 rating decision, the AOJ increased the assigned 30 percent rating to 70 percent, effective December 9, 2014. On a June 2016 NOD, the Veteran indicated disagreement with the effective date of the award. The Veteran then submitted a private medical opinion which states the difficulties from PTSD have been present since 2012. The relevant rating criteria for PTSD are as follows. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a) (2016). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A. Prior to December 9, 2014 Following a complete review of the appellate record, the Board finds that the Veteran’s psychiatric symptoms have not caused the level of impairment required for a disability rating of 50 percent or higher during this period on appeal. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. The private medical record of October 2020 listed symptoms of PTSD such as trouble sleeping, anxiety, depression, and memory problems. The examiner opined that these limitations presented at least from 2012 based on a review of the Veteran’s medical records dating back to 2012 and are more likely than not service connected. There is no discrepancy in this regard, that these symptoms were present in 2012. This appeal is regarding the level of impairment, not whether any impairment existed or is connected to service. This opinion is competent, however it does not add any probative value to the issue of an increased rating. The Board has reviewed the Veteran’s medical records dating back as far as January 2012, when the Veteran had a negative PTSD screen. The evidence discussed herein will be from April 2012 onward. The Veteran presented in April 2012 feeling anxious and irritable at times. He denied any illusions or hallucinations, irrational thoughts, obsessions, suicidal, or homicidal thoughts. The examiner noted that the Veteran continued to run his own business and that insomnia and panic symptoms were variable. In May 2012, the Veteran stated that he is doing well, although is irritable at times. In December 2012, the Veteran presented with a good mood, good concentration, and that he works daily. In April 2013, the Veteran’s stated social phobia was in “good control” and insomnia was manageable. At no point during this period on appeal did the Veteran present with flattened affect, stereotyped speech, panic attacks more than once per week, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. Overall, the Veteran presented with depressed mood, sleep disturbances, and mild memory loss, which is contemplated by the 30 percent disability rating. The Veteran submitted a private psychological evaluation, dated March 2014, which contained a battery of psychological tests to determine his cognitive, affective, and behavioral functioning. The Board will not endeavor to explain and interpret every one of those tests, which took place over a period of three days. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows or fails to show. The March 2014 examiner observed psychomotor agitation, no delusions, no hallucinations, and acceptable judgement and abstract reasoning skills. The Veteran “indicated that he has experienced suicidal thoughts, but has never developed any concrete plans, nor has he made any suicidal gestures. He denied any homicidal ideation, plan, or action.” The Veteran was given a test that evaluates self-reported suicidal thoughts and behaviors. Elevated scores would indicate a potential threat to life. The results showed no elevated scores on the suicidal scale or any of the subscales. Other tests included one that evaluates a broad collection of psychoneurotic disturbances, including obsessions, compulsions, and phobias. The primary symptom associated with that scale is worry, of which the Veteran’s scale was elevated. Also, the Veteran’s score for a tendency toward panic attacks was elevated, but there was no indication as to how many panic attacks the Veteran suffered. Other results showed fear, panic, fight/flight response, and disturbances in sleep and mood. Again, the overall disability picture is most closely represented by the 30 percent disability rating. The examiner noted that the Veteran is polite, affable, has a balanced social circle, and has the necessary skills to interact with others effectively. The next higher disability rating contains occupational and social impairment with reduced reliability and productivity due to symptoms that the Veteran did not exhibit. Of note, the Veteran was working at that time, but was starting to have difficulties keeping up with the demands of the job. The issue of unemployability is discussed below. B. From December 9, 2014 The Veteran was afforded a VA examination in December 2014. From December 9, 2014, the Veteran’s PTSD was rated at 70 percent disabling under Diagnostic Code 9411. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. Evidence of record does not show total occupational and social impairment. At the December 2014 examination, the Veteran reported symptoms of chronic sleep disturbance, nightmares, flashbacks, depression, lack of motivation, sadness, panic attacks, anxiety, irritability, difficulty with short term memory, hypervigilance, suspiciousness, heightened startle response, emotional and social isolation, suicidal ideations, and relationship disruption. The examiner noted occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that in March 2014 and December 2014, the Veteran reported suicidal ideation without a plan or intent. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. He has not had these thoughts persistently, or any thoughts of harming others. Of note, these thoughts were not reported before 2014 or since then, and were never considered persistent. The evidence shows there is not persistent danger of hurting himself, persistent delusions or hallucinations, or inability to perform activities of daily living, to name a few of the criteria. As such, a 70 percent disability rating is the maximum rating warranted for this period on appeal. In assessing the Veteran’s symptomatology in toto as to any given portion of the period on appeal, the Board finds that none of the findings rendered by previous VA examiners, nor any other relevant evidence of record informs the Board of a symptomatology that warrants a rating in excess of what has been contemplated and assigned by the highest rating on the rating scale. For the reasons stated above, the Veteran’s appeal seeking a higher initial disability rating is denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) from December 9, 2014 The Veteran contends that he entitled to TDIU because of his service-connected disabilities. He stated that his urinary frequency is a significant factor in finding or maintaining employment, and that he had difficulty concentrating in 2012. See September 2020 Board hearing. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of a substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). “Substantially gainful employment” is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, in evaluating a Veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The word “substantially” suggests an intent to impart flexibility into a determination of a Veteran’s overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). 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. § 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. During the period on appeal, service connection was in effect for PTSD at 30 percent increased to 70 percent, urinary frequency at 60 percent, and tinnitus at 10 percent disabling. As the Veteran has a combined rating of no less than 70 percent, he meets the objective criteria under 38 C.F.R. § 4.16 for consideration of a TDIU. The Veteran’s highest reported education is a GED diploma. His occupational history has primarily consisted of working as a currency counter repairman. See March 2014 Private medical record. As of the December 2014 VA exam, the Veteran was employed part time, however reported that he is having difficulty sustaining employability due to PTSD symptoms. At the September 2020 hearing, the Veteran stated that he hardly worked in the past 5 years due to his back because it is hard for him to sit. Finally, the October 2020 private medical opinion states the Veteran stopped working 4 years ago because of his medical issues. This report did not mention what issues prevented his employment. The theory as to when and why the Veteran ultimately retired is unclear, as the Veteran has inconsistently reported the cause and date of his retirement. The Veteran’s attorney contends his service-connected disabilities prevented substantial employment since 2012. However, the Veteran reported in the Board hearing that he stopped working in 2015 and reported to the October 2020 private examiner that he stopped working in 2016. Therefore, the earliest date at which the Veteran would be eligible for TDIU is some point in 2015. The operative question is whether the Veteran’s service-connected disabilities severely limited the occupational work the Veteran was able to perform. In the March 2014 private exam, the examiner stated the Veteran is no longer able to keep up with the demands of his job because it requires extensive driving, lifting, walking, and public interaction. The Veteran was still employed at the December 2014 VA exam, but the examiner noted difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances including work or a work-like setting. Although the Veteran was employed part-time, the Board finds that his limitations due to PTSD may have contributed to maintaining gainful employment. The Veteran is afforded the benefit of the doubt. Accordingly, the Board concludes that the Veteran was rendered unemployable due to his service-connected PTSD, and a grant of TDIU is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.