Citation Nr: 21068925 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 16-41 868 DATE: November 16, 2021 ORDER Entitlement to service connection for a bilateral eye condition is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. Entitlement to an initial rating of 100 percent for an acquired psychiatric disorder, diagnosed as PTSD with Bipolar disorder, is granted. FINDINGS OF FACT 1. The Veteran's bilateral eye condition, diagnosed as cataracts, is not etiologically related to service. 2. The evidence does not show a current diagnosis of ED. 3. Throughout the period on appeal, the Veteran's PTSD has been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral eye condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for ED have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to an initial disability rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to August 1994. He appeals a February 2013 rating decision granting entitlement to service connection for PTSD with an initial 70 percent rating, and a February 2013 rating decision denying entitlement to service connection for a bilateral eye condition and ED. The Veteran was scheduled for a hearing before the Board in February 2019. A request for cancellation and rescheduling was requested. In a letter dated April 26, 2021, the Veteran was notified that his hearing had been rescheduled for August 30, 2021, and notified of his rights should he not be able to attend. The Veteran did not attend the August 2021 hearing and failed to send a written request to reschedule the hearing at least two weeks before offering "good cause" for rescheduling the hearing. Hence, the Board will proceed with adjudication of the appeal. The Board observes that the Veteran was awarded a 100 percent rating for PTSD, effective August 25, 2014, in an August 2016 rating decision. As this award does not represent a full grant of benefits sought on appeal, the issue of an increased rating for PTSD remains on appeal. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for a bilateral eye condition. 2. Entitlement to service connection for ED. The Veteran asserts that he suffers from ED and a bilateral eye condition related to active service. After a review of the evidence, the Board finds that service connection is not warranted. A review of the Veteran's service treatment records does not reveal treatment for or complaints of any vision loss or erectile dysfunction. The Veteran has been diagnosed with cataracts. No current diagnosis of erectile dysfunction, or any other related issue, is of record. First, the Board observes that no evidence of ED is found in the record at any time. There is no current diagnosis, no indication of an in-service event, and no evidence of treatment for any ED related issues after separation from service. In fact, the Veteran has not made any supporting statements regarding the claim. As such, the preponderance of the evidence indicates that the Veteran does not have a current ED condition now, or any time during the period on appeal, for which entitlement to VA compensation benefits is warranted. Next, the Board will address the Veteran's claimed bilateral eye condition (claimed as vision loss). At entrance to service, the Veteran's distance visual acuity was measured at 20/20 in both eyes. At separation from service, his distance visual acuity measured at 20/25 in the right eye and 20/30 in the left eye. This is considered within normal limits for the purposes of VA disability compensation. See 38 C.F.R. § 4.79. To date, the Veteran has not submitted any lay evidence offering further details regarding his "vision loss" claim. As to the medical evidence, the Veteran was afforded a VA examination in December 2012. The examiner diagnosed the Veteran with nuclear sclerotic cataracts, but noted that cataracts are progressive in nature and an exact date of diagnosis is impossible. Prior to that date, the record contains no evidence of post-service treatment for the Veteran's vision. Based on the foregoing, the Board finds the bulk of the evidence weighs against finding that the Veteran's cataracts are related to service. Although his vision degraded to some degree during active service, the Veteran's vision was still within normal limits at separation from service. In addition, no diagnosis of or treatment for cataracts is of record until 2012, nearly 20 years after separation from service. As such, the threshold requirements of an in-service event which may be linked to the Veteran's current cataracts has not been established. To summarize, the preponderance of the evidence weighs against finding that the Veteran's claimed ED or his diagnosed cataracts are attributable to active service. Accordingly, the claims are denied. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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." 38 C.F.R. § 4.7. 3. Entitlement to an initial rating greater than 70 percent for PTSD. The Veteran seeks a higher rating for his PTSD. After a review of the evidence, the Board finds that a 100 percent rating is warranted throughout the period on appeal. The Veteran's PTSD with Bipolar disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. Under these rating criteria, 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434. 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. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court of Appeals for Veterans Claims (Court) also pointed out in that case, "[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. In this case, the Veteran was afforded VA examinations in December 2012 and August 2014. On both occasions, the examiner noted a near identical list of symptoms, to include anxiety, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Both examiners' noted that the Veteran was currently unemployed due to his mental health condition. The only discernable difference between the two exams is that the August 2014 examiner acknowledged that the Veteran's PTSD resulted in total social and occupational impairment, whereas the December 2012 examiner determined that the Veteran's level of occupational and social impairment was just that of reduced reliability and productivity. In this regard, the Board observes that a medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Thus, the ultimate determination regarding a Veteran's level of disability is placed on the adjudicator and not a medical examiner. Cf. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, the preponderance of the evidence indicates that the Veteran's PTSD has resulted in total occupational and social impairment throughout the period on appeal. It was noted at the Veteran's December 2012 VA examination that he had been hospitalized to treat his psychiatric disorder twice within months of the exam and had not worked since then. The Board finds this to be a clear indication that the Veteran's total occupational and social impairment predated his August 2014 VA examination by several years at least. In summation, the preponderance of the evidence demonstrates that the Veteran's PTSD with Bipolar disorder has resulted in a level of impairment most accurately characterized as total occupational and social impairment throughout the period on appeal. Accordingly, an initial 100 percent rating for PTSD is warranted and the claim is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel