Citation Nr: 21071786 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-42 279 DATE: December 1, 2021 ORDER Service connection for bilateral hearing loss is granted. A compensable rating for erectile dysfunction is denied. A compensable rating for difficulty chewing/swallowing is denied. A rating higher than 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for obstructive sleep apnea, to include as secondary to Parkinson's disease is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his hearing loss is related to military noise exposure. 2. The Veteran experiences severe sexual dysfunction due to Parkinson's disease, but does not have a penis deformity. 3. The Veteran has mild difficulty chewing and swallowing and does not experience moderate paralysis. 4. The Veteran's PTSD symptomatology does not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.20, 4.31, 4.115b, Diagnostic Code (DC) 7599-7522. 3. The criteria for a compensable rating for difficulty chewing/swallowing are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.20, 4.31, 4.115b, DC 8205. 4. The criteria for a disability rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to November 1969. The appeal was remanded by the Board in June 2019 for issuance of a supplemental statement of the case (SSOC). The SSOC was issued in July 2020 and the case is now back before the Board. Hearing Loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. To establish service connection for a disability, a Veteran 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran has hearing loss for VA purposes and he served in an artillery unit in the military. The Board finds this to satisfy the first two elements of service connection. Turning to the third element, medical nexus, the evidence consists of the Veteran's own statements and opinions from VA and private physicians. The VA examiners opined that it was less likely than not that the Veteran's hearing loss was related to service. The main rationale was because there was no shift in the Veteran's hearing from when he entered service and when discharged. The Board finds these opinions are inadequate because they don't properly consider the Veteran's in-service noise exposure as the source of his hearing loss. Therefore, these opinions have less probative value since they lack adequate reasoning. In contrast, in statements received by VA in July 2015, Drs. H.R. III and S.S. both opined that it was more likely than not that the Veteran's hearing loss was due to exposure to loud noises while in service. The Board finds the evidence to be in relative equipoise. If the evidence is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for bilateral hearing loss is granted. 38 C.F.R. § 3.303. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Sexual dysfunction associated with Parkinson's disease The Veteran seeks an initial compensable disability rating for his service-connected erectile dysfunction, which is currently evaluated as noncompensable under DC 7599-7522. When an unlisted condition is encountered, it is permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. See 38 C.F.R. §§ 4.20, 4.27. Here, the hyphenated diagnostic codes indicate that the Veteran's unlisted genitourinary disability not specifically listed in the Schedule disability is deemed analogous to erectile dysfunction which is rated as DC 7522. DC 7522 provides a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. When the requirements for a compensable rating of a diagnostic code are not shown, a 0 percent rating is assigned. 38 C.F.R. § 4.31. The Veteran has made well documented complaints of erectile dysfunction. In June 2017 a VA examiner said the Veteran's erectile dysfunction, which stems from Parkinson's disease is severe. That being said, the record lacks evidence showing that the Veteran's penis is deformed. Absent evidence of any penile deformity, even though there is erectile dysfunction, a compensable rating is not warranted under DC 7522. As the requirements for a compensable rating under DC 7522 are not met, a noncompensable (0 percent) rating is proper pursuant to 38 C.F.R. § 4.31. The Board does, however, note that the Veteran has been in receipt of special monthly compensation on account of the loss of use of a creative organ. Chewing/swallowing The Veteran is currently in receipt of an initial noncompensable rating for difficulty chewing/swallowing under DC 8205. The Veteran seeks a compensable rating for this disability. Under DC 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the fifth cranial nerve. A 30 percent rating is warranted for severe incomplete paralysis of the fifth cranial nerve. A 50 percent rating is warranted for complete paralysis of the fifth cranial nerve. A zero percent rating is assignable where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Evidence does not support finding that a compensable rating is met. The evidence of record does not support a higher initial rating. Despite the lack of reported problems chewing and swallowing in treatment records, the Veteran's VA examinations show he does have some difficulty chewing and swallowing. At VA examinations in June 2017 and February 2018, the examiner noted that the Veteran had mild difficulties chewing and swallowing. Looking at treatment records, in July 2017 the Veteran did not have any difficulty swallowing or talking. Then in his August 2017 VA Form 9, the Veteran stated that he had to take smaller bites and needed more time to chew and drink. In December 2017, he reported that he did not have problems chewing or swallowing food or liquids. In fact, he was chewing about two to three cans of tobacco a week at the time and reported drinking a few beers, every so often. In March 2018, once again, the Veteran did not report difficulties swallowing or talking. The record lacks evidence that the Veteran had moderate difficulty chewing and swallowing or had any sort of jaw paralysis, let alone moderate paralysis. As a result, the Board finds that the evidence does not support finding a compensable rating is warranted. Therefore, the Veteran's claim is denied. PTSD The Veteran seeks a rating higher than 30 percent for PTSD. The period on appeal is from December 2013 to present. From December 2013 to July 2014 the Veteran's psychiatric disorder was rated under DC 9413 for anxiety. In July 2014, the Veteran's disability was reclassified and the code was changed to 9411 for PTSD. While treatment records indicate the Veteran has had different psychiatric disorders, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in December 2013. Fenderson v. West, 12 Vet. App. 119 (1999). Under the General Rating Formula for Mental Disorders, 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). Upon review, the Board finds that a rating higher than 30 percent is not warranted. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. Id. Turning to the medical evidence, regularly, the Veteran had good mental status examinations. For example, mental status examinations in November 2013, August 2014, October 2015, March 2016, June 2017, August 2017, September 2018 were relatively positive. However, there were times when the Veteran did have difficulty. For example, in December 2013, he reported that he could recognize faces, but could not recall someone's face if he was not looking at the person. That same month he reported that he had trouble remembering things and that he may have had a delusion and saw someone going over a fence when no one was actually there. He also reported that although he went to church, he did not socialize with other congregants. The lack of socialization with other congregants was a theme throughout the record. Nonetheless, the Veteran said that month "things are going good." In June 2014, the Veteran was able to sufficiently focus to pass a driving test. Then in January 2015, the Veteran reported being on edge after moving, having problems sleeping, nad having nightmares. His care providers said a change in scenery due to moving houses was the likely cause the Veteran's heightened insecurity. One month later, the Veteran was not down or depressed, but was detached and on guard. In May 2015, the Veteran had trouble sleeping. At the time, he was living with his wife and stepdaughter. That month, a VA examiner stated that the Veteran had occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, had normal routine behavior, and was able to self-care and engage in conversation. More specifically, the examiner opined that the Veteran's occupational and social impairment were due to mild or transient symptoms. These symptoms were said to decrease the Veteran's work efficiency and ability to perform occupational tasks only during periods of significant stress. At the same time, the Veteran reported that he enjoyed playing golf, performing home repairs, and doing housework. Thus, showing an ability to concentrate. He was sleeping uninterrupted for five to six hours a night. The Veteran described his self-esteem as "average, [but] not real great." He was fully alert and oriented. He could recall three of three times immediately and after a delay with two prompts. One month later, the Veteran reported not being able to calm his mind, not being able to be around others, and being indecisive. One year later in June 2016, and after two positive mental status examinations, the Veteran traveled see another Veteran and then in April 2017 was in a good mood and excited to attend a family reunion. In June 2017, the Veteran once again had little to no interest in things, was depressed, and avoided stimuli and had nightmares. At this point, he only slept about four hours a night, felt stressed, down, and unmotivated. In June 2017, the Veteran had a VA examination. At the VA examination, he reported that he saw his daughter and her family regularly. He stated he avoided large crowd. He enjoyed gardening and tried to exercise regularly when possible. In June 2018, at another VA examination, the Veteran had a depressed mood, lack of purpose, a poor appetite, was anxious, reported having a panic attack less than once a week and experienced chronic sleep impairments. Panic attacks were more regular in traffic. At the time, he was living with his wife, seeing his grandson once or twice a year, still visiting a military buddy once a year, and reported having traveled with another friend. The June 2018 examiner opined that the Veteran had an occupational and social impairment which resulted in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was able to generally function satisfactorily, with normal routine behavior, self-care, and conversation. That being said, as previously mentioned, that same month he had a normal mental status examination. In November 2017, he reported that he took little pleasure in doing things The Veteran contends the Board should not put stock into the May 2015 VA examination because his meeting with the examiner was so short that it must be inaccurate. The Board finds the May 2015 VA examination is accurate. First, the fact that it is similar to other examinations lends it legitimacy. Also, because the individual that conducted the examination is a clinical psychologist, his expertise affords him the ability to assess complex medical issues within his field. Even if the Board did not consider the opinion, there is enough evidence for the Board to render a decision, which would be the same as it is issuing now. In December 2013, the Veteran's wife reported that the times the Veterans would curl into the fetal position and shiver due to his disability. She added he was sensitive to loud noise, startled by people that approached him from behind, needed to sit with his back against the wall, and did not trust people. The statement of the Veteran's wife is believable but is not quantified. It is not clear how often the Veteran curled into a ball or how regularly he did not trust people. Clearly, the Veteran trusts family and is able to visit with friends. The Veteran shows an ability to be around some people and concentrate on certain tasks. He finds enjoyment in some activities. During the course of the appeal, the Veteran did not have an 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; or difficulty in establishing and maintaining effective work and social relationships. The Veteran's disturbances in motivation, mood, and lack of trust would not cause reduced reliability and productivity. As can be seen, the Veteran's symptoms waxed and waned and would produce intermittent periods of inability to perform occupations tasks, which corresponds to a 30 percent rating. REASONS FOR REMAND Service connection for obstructive sleep apnea Records show the Veteran has obstructive sleep apnea. They do not show the cause of obstructive sleep apnea nor has there been a VA examination to evaluate the Veteran's obstructive sleep apnea. Having such an examination would be beneficial in rendering a decision. The matter is REMANDED for the following action: (Continued on the next page) Schedule the Veteran for a VA examination to determine the nature and the etiology of his obstructive sleep apnea. The claims file should be provided to the examiner for review. The examiner must opine whether it is at least as likely as not that the Veteran's obstructive sleep apnea is related to his military service. The rationale for the opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.