Citation Nr: 21065226 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-17 994A DATE: October 25, 2021 ORDER The appeal for a rating in excess of 10 percent for tinnitus, to include on an extraschedular basis, is denied. For the entire period on appeal, a rating greater than 30 percent for bilateral hearing loss, to include on an extraschedular basis, is denied. Effective September 6, 2006, an increased initial rating of 70 percent (but no higher) for the Veteran's posttraumatic stress disorder (PTSD) is granted. Effective April 1, 2007, a total disability rating based on individual unemployability (TDIU) is granted. Effective September 6, 2006, service connection for a left elbow disability (to include osteoarthritis) is granted. Effective September 6, 2006, service connection for a right elbow disability is granted. Effective September 6, 2006, service connection for a left knee disability (to include osteoarthritis) is granted. REMANDED The appeal for an increased rating for service-connected erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. The Veteran's service-connected tinnitus, while causing ringing in the ears, has not been shown to cause an exceptional or unusual degree of occupational impairment. 2. For the entire period on appeal, the Veteran's bilateral hearing loss has been manifested by auditory acuity no worse than Level VII in the right ear and Level VI in the left ear, which corresponds to a 30 percent rating; there is no indication of an exceptional pattern of hearing impairment or suggestion that the regular schedular rating criteria do not contemplate his level of functional impairment at any time during the period on appeal. 3. Affording the Veteran the benefit of doubt, the evidence of record is at least evenly balanced for and against (in "relative equipoise") finding that the Veteran's PTSD symptoms (including: depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbance in mood, difficulty in establishing and maintaining relationships, difficulty adapting to stressful circumstances, impaired impulse control, special disorientation, persistent delusions or hallucinations, neglect of personal hygiene, and suicidal ideations) have manifested to a severity that more closely approximates a 70 percent rating under the relevant Diagnostic Code and represent a significant impairment on his ability to work and function socially; these symptoms were present during the entire appeal period, which begins September 6, 2006. See September 2006 VA treatment record, December 2010 VA examination, June 2014 VA examination, August 2015 VA examination, December 2018 VA examination, April 2019 statement, October 2019 Board hearing, and February 2021 correspondence. 4. Affording the Veteran the benefit of doubt, the evidence of record is at least evenly balanced for and against (in "relative equipoise") finding that the symptoms caused by his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment since at least April 1, 2007. See July 2012 VA 21-8940, October 2019 Board hearing, January 2020 SSA records, February 2021 VA 21-8940. The grant in this decision of a 70 percent disability rating for PTSD makes the Veteran eligible for a schedular TDIU rating. 5. Affording the Veteran the benefit of doubt, the evidence of record is evenly balanced for and against (in "relative equipoise") finding the Veteran's current left elbow osteoarthritis had its onset during active service, while the Veteran was serving in Vietnam, during active combat; the Veteran provided competent and credible statements about observable symptoms (including stiffness, sharp pains, tingling and throbbing) he experienced during service, which have continued and worsened since that time; his left elbow pain causes functional impairment (See November 2020 VA examination); thus, a causal link ("nexus") is established between his current left elbow osteoarthritis and his injuries during service. See September 2006 statement, May 2012 buddy statement, June 2014 VA examination, June 2019 NOD, October 2019 Board hearing, and November 2020 VA examination. [The Board cannot assign any probative weight to the negative VA medical opinions because they provide inadequate rationales for their opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning).] 6. Affording the Veteran the benefit of doubt, the evidence of record is evenly balanced for and against (in "relative equipoise") finding the Veteran's current right elbow disability had its onset during active service, while the Veteran was serving in Vietnam, during active combat; the Veteran provided competent and credible statements about observable symptoms (including stiffness, sharp pains, tingling and throbbing) he experienced during service, which have continued and worsened since that time; his right elbow pain causes functional impairment (See November 2020 VA examination); thus, a causal link ("nexus") is established between his current right elbow disability (pain coupled with functional impairment; See Saunders v. Wilkie, 886 F.3d 1356 (2018) (despite lack of a formal diagnosis, symptoms may count as a disability for Department of Veteran's Affairs (VA) compensation purposes if they cause functional impairment) and his injuries during service. See September 2006 statement, May 2012 buddy statement, June 2014 VA examination, June 2019 NOD, October 2019 Board hearing, and November 2020 VA examination. The Board cannot assign any probative weight to the negative VA medical opinions because they provide inadequate rationales for their opinions. Id. 7. Affording the Veteran the benefit of doubt, the evidence of record is evenly balanced for and against (in "relative equipoise") finding the Veteran's current left knee joint osteoarthritis had its onset during active service, while the Veteran was serving in Vietnam, during active combat; the Veteran provided competent and credible statements about observable symptoms (including constant pain, stiffness, difficulty bending, and giving out) he experienced during service, which have continued and worsened since that time; his left knee pain causes functional impairment (See November 2020 VA examination); thus, a causal link ("nexus") is established between his current left knee joint osteoarthritis and his injuries during service. See September 2006 statement, May 2012 buddy statement, June 2014 VA examination, June 2019 NOD, October 2019 Board hearing, October 2019 private treatment record, and November 2020 VA examination. The Board cannot assign any probative weight to the negative VA medical opinions because they provide inadequate rationales for their opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). CONCLUSIONS OF LAW 1. The 10 percent rating currently assigned for tinnitus is the maximum available schedular evaluation, and there is no basis for an extraschedular evaluation shown in this case. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.87, Diagnostic Code (DC) 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria have not been met for a rating in excess of 30 percent for bilateral hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100. 3. Effective September 6, 2006, the criteria have been met for an increased rating of 70 percent (but no higher) for PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Code 9411; Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). 4. Effective April 1, 2007, the criteria have been met for TDIU, effective May 3, 2005. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 5. Effective September 6, 2006, the criteria have been met for service connection a left elbow disability (to include osteoarthritis). 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. Effective September 6, 2006, the criteria have been met for service connection for a right elbow disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 7. Effective September 6, 2006, the criteria have been met for service connection for a left knee disability (to include osteoarthritis). 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to December 1968, with service in Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2011 (increased rating for PTSD, service connection for bilateral elbow, and left knee disabilities), March 2014 (increased rating for tinnitus), October 2014 (increased rating for bilateral hearing loss), and October 2018 (increased rating for ED) rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at an October 2019 Board hearing; a transcript of the hearing is in the record. The October 2019 Board hearing was conducted by a different Veterans Law Judge from the undersigned, who is no longer at the Board. In February 2021 VA correspondence, the Veteran was offered the opportunity to testify at another hearing, but the Veteran indicated he did not wish to appear at another hearing. Accordingly, the Board finds that the Veteran waived his right to another hearing and the Board will proceed with adjudication. The issues of an increased rating for PTSD, service connection for left and right elbow conditions, and a left knee condition were originally decided in a May 2011 rating decision. In June 2011, the Veteran timely filed a notice of disagreement (NOD) to that rating decision. In June 2012, an SOC was issued on the same issues. The Veteran did not timely file a VA Form 9. In December 2012, VA sent a letter to the Veteran indicated that he did not timely file a VA Form 9 and the appeal was closed. However, the Veteran filed an NOD and in March 2014, VA determined it would accept as timely a package of information the Veteran filed in lieu of a VA Form 9. Therefore, the applicable appeal period for issues of an increased rating for PTSD, service connection for left and right elbow conditions, and a left knee condition begins with the Veteran's original claim of September 6, 2006. Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. 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). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. 1. The appeal for a rating in excess of 10 percent for tinnitus, to include on an extraschedular basis, is denied. The Veteran asserts that his tinnitus warrants a disability rating in excess of 10 percent. The Veteran's tinnitus is rated as 10 percent disabling, effective July 14, 2011. 38 C.F.R. § 4.87, Diagnostic Code 6260. This is the maximum schedular rating available for this disability and, therefore, there is no legal basis on which to award a higher schedular disability rating. See 38 C.F.R. § 4.87, Diagnostic Code 6260; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has not overlooked the Veteran's statements about the frequency, severity, and duration of his tinnitus. He is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning his tinnitus symptoms have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, these statements do not establish that a higher rating is warranted because they do not explain (or even assert) that the Veteran is experiencing symptoms not considered by the applicable diagnostic code in the VA Rating Schedule. The Board is sympathetic to the Veteran's reports and understands that his tinnitus has a significant effect on his daily life. However, these symptoms more nearly approximate the currently assigned 10 percent evaluation and do not warrant an increase in the rating. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. For the entire period on appeal, a rating greater than 30 percent for bilateral hearing loss, to include on an extraschedular basis, is denied. Hearing loss disability ratings are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the Veteran's average hearing threshold. The average Puretone threshold is derived from Puretone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Factual Background During the Veteran's June 2014 VA audio examination, audiometry revealed that Puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 25 20 30 28 LEFT 45 35 35 40 39 Speech audiometry revealed speech recognition ability of 48 percent for the right ear and 52 percent in the left ear. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level VII for the right ear and Level VI for the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a 30 percent evaluation under Table VII. During the Veteran's December 2018 VA audio examination, audiometry revealed that Puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 55 55 49 LEFT 35 50 55 55 49 Speech audiometry revealed speech recognition ability of 72 percent for the right ear and 68 percent in the left ear. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level IV for the right ear and Level IV for the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a 10 percent evaluation under Table VII. During the Veteran's April 2019 private audio examination, audiometry revealed that Puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 55 64 51 LEFT 50 50 55 55 53 Speech audiometry speech recognition was testing, but the quality of the record submitted to VA for consideration was illegible for the Board to reliable consider the information. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level III impairment bilaterally, excluding any speech recognition speech audiometry. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a noncompensable evaluation under Table VII. During the Veteran's March 2021 VA audio examination, audiometry revealed that Puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 40 55 60 65 55 LEFT 45 55 65 65 58 Speech audiometry revealed speech recognition ability of 68 percent for the right ear and 64 percent in the left ear. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level V for the right ear and Level VI for the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a 20 percent evaluation under Table VII. In his August 2018 statement, the Veteran stated that he has functional impacts due to his hearing loss. He stated that he has difficulty understanding speech, must have things repeated, has difficulty with phone conversations, and dizziness. He stated VA should consider extra-schedular rating because the rating criteria do not compensate his unique symptomatology adequately. He cites to Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017), indicating this case stands for the proposition that if he is not adequately compensated by the schedular rating, and extra-schedular rating should be applied. In an April 2019 statement from the Veteran's spouse, she indicated that the Veteran's hearing has been deteriorating and making life extremely difficult. She indicated that their social life has deteriorated because the Veteran is embarrassed to be in situations where he cannot hear the conversation. Analysis The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. 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). The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. After carefully reviewing the evidence, the Board finds that no audiometry during the period under consideration shows a hearing loss disability warranting a rating in excess of 30 percent under the schedular criteria for rating hearing loss. The Board further finds that the record does not demonstrate an exceptional pattern of hearing impairment in either ear of the type contemplated by 38 C.F.R. § 4.86. Accordingly, the Board must conclude that the Veteran's claim for a rating in excess of 30 percent for bilateral hearing loss is not warranted. Further, the Board notes that more recent audiometry shows improvement in the Veteran's hearing acuity that would warrant a decreased rating, but the Board finds no material improvement to the Veteran's ability to function under the ordinary conditions of life based on his and his spouse's statements within the record. Regarding the Veteran's statements that his hearing impairment is greater than reflected by the 30 percent rating assigned, the Veteran is competent to testify as to symptoms he experiences, and indeed, the audiometry indicates that his hearing has worsened. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). As noted above, however, disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned from audiometric evaluations. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the Board is unable to grant the appeal because the specific legal criteria for a higher rating for bilateral hearing loss have not been met. The Board has considered whether this matter should be referred for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). In this case, however, referral for extraschedular consideration is not necessary because the schedular criteria for the Veteran's hearing loss contemplate the findings and associated functional impairment (such as difficulty hearing conversations with background noise) shown and there is no impairment (either reported by the Veteran or indicated by the evidence of record) that is not encompassed by the schedular criteria; therefore, the schedular criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008) (setting forth criteria for when referral for extraschedular consideration is required); see also Doucette v. Shulkin, 28 Vet. App. 366 (2017). 3. Effective September 6, 2006, an increased initial rating of 70 percent (but no higher) for PTSD is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for an increased initial rating of 70 percent is granted. A 100 percent rating is warranted 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. 38 C.F.R. § 4.130. Crucially, the symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran reported being married for 40 years and has two children, with whom he lived but the relationship is often strained and in conflict. The Veteran also was able to attend almost all of his VA examinations and maintained appropriate dress and decorum. Throughout the record on appeal, the Veteran's PTSD has not manifested total occupational and social impairment. Though his symptoms are severe, they do not more closely the rating criteria required for a 100 percent evaluation. 4. Effective April 1, 2007, TDIU is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for a TDIU is granted. Service Connection 5. Effective September 6, 2006, service connection for a left elbow disability (to include osteoarthritis), right elbow disability, and left knee disability is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeals for service connection for left and right elbow disabilities and a left knee disability are granted. REASONS FOR REMAND 1. The appeal for an increased rating for service-connected erectile dysfunction is remanded. The Veteran's ED condition is currently rated as noncompensable under the rating criteria. However, the Veteran may be entitled to a higher rating (including a schedular rating of 20 percent under 38 C.F.R. § 4.115b, DC 7522) if it is determined that a deformity is present, whether internal or external. To date, no physical examination of the Veteran's reproductive organ has been performed at the Veteran's request. However, the Veteran should be informed of the consequences of refusing this examination and given the opportunity to allow a VA examiner to determine if a deformity is present, which leads to the Veteran's erectile dysfunction. Alternatively, no VA examiner has opined as to whether there is any physical deformity which may be causing the Veteran's erectile dysfunction. Therefore, a remand is required to obtain a VA examination. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected erectile dysfunction. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. (a.) Specifically, the examiner is asked to provide an opinion as to whether any deformity is present which contributes to the Veteran's erectile dysfunction. (b.) The Veteran should be given the opportunity to submit to a physical examination to determine if a deformity is present. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. Absent affirmative evidence to the contrary, the examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.