Citation Nr: 21006537 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-39 739A DATE: February 4, 2021 ORDER Service connection for lipomas, claimed as a lump on the right side, is granted. Service connection for acid reflux is denied. Service connection for hypertension is denied. A compensable rating for right ear hearing loss from the date of claim and a compensable rating for bilateral hearing loss since September 13, 2018, is denied. REMANDED The issue of service connection for erectile dysfunction is remanded. The issue of service connection for a sleep disorder, to include insomnia and/or obstructive sleep apnea, is remanded. The issue of service connection for an acquired psychiatric disorder, to include major depressive disorder and adjustment disorder, to include as secondary to service-connected tinnitus and/or a claimed sleep disorder, is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s current lipomas began with a single lipoma on his right flank during military service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a disability manifested by acid reflux, such as gastrointestinal reflux disease (GERD), at any time during the pendency of the claim. 3. Hypertension did not have its onset during military service or manifest to a compensable degree within one year of separation from service and is not otherwise shown to be related to the Veteran’s military service or to a service-connected disability. 4. Since receipt of the claim for an increased rating, right ear hearing loss has been manifested by no worse than Level I hearing impairment; since a left ear hearing loss disability was confirmed on September 13, 2018, left ear hearing loss has been manifested by no worse than Level I hearing impairment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for lipomas, claimed as a lump in the right side, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a disability manifested by acid reflux have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for a compensable rating for right ear hearing loss from the date of claim and a compensable rating for bilateral hearing loss since September 13, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) from March 2015, January 2016, and November 2016 rating decisions. In May 2019, the Board remanded the appeal, which was limited at the time to the claims for service connection, to the agency of original jurisdiction (AOJ) for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Service connection for lipomas, claimed as a lump on the right side In May 2019, the Board remanded the claim for service connection for a lump on the right side to seek clarification from the Veteran as to the location of the lump and any diagnoses related to the lump. Neither he nor his attorney responded to a November 2019 letter from the AOJ requesting this information. However, during a January 2020 VA examination, he reported that he developed a lesion on the right flank in 1969, which had been intermittently tender, adding that he was treated with anti-inflammatory medication in service and subsequently diagnosed with lipomata by a civilian physician. The examining dermatologist described lipomas or lipomata on the Veteran’s right flank, bilateral upper arms, and anterior thighs manifested by subcutaneous mobile nodules with no central punctum. Then, during a July 2020 fee-basis examination, the Veteran stated that he started having a lot of pain in his right side and first noticed a lump after being in a sand pit with 30 others piled on top of him during basic training. He indicated that he continued to complain about his side when he was placed on sea duty and was given anti-inflammatory pills. The examiner described a lipoma located on the right flank manifested by soft fatty tissue that was mobile. Each examiner diagnosed lipomas. Based on the Veteran’s statements to the VA and fee-basis examinations, the Board understands that he is seeking service connection for one of more lipomas with the first lipoma reportedly incurred during active duty and located on his right flank. For clarity, a “lipoma” is a “benign, soft, rubbery, encapsulated tumor of adipose tissue, usually composed of mature fat cells; it generally occurs as a solitary lesion in the subcutaneous tissue of the trunk, nucha, or forearms, but may occur in deeper soft tissues.” Dorland’s Illustrated Medical Dictionary 1063 (32d ed. 2012). The “flank” is “the side of the body inferior to the ribs and superior to the ilium.” Id. at 714. In a May 1964 enlistment report of medical history, the Veteran denied currently or ever having tumors, growths, or cysts. On examination the same day, his skin was reported as normal and he had no identifying body marks or scars on clinical evaluation. In early March 1965, the Veteran complained of swelling and tenderness in the right inguinal area for the past three weeks and a small sore on his penis for the past week. A separate treatment from the same day diagnosed chancroid of the glans penis. During a follow-up visit later than month, the inguinal swelling showed some improvement; other reported examination findings included small lesions on his scalp and face. He was treated with Neocort ointment. In June 1966, he complained of pain in his right side and was provided “assurance.” In August 1966, he complained of an abscess in his left axilla. He was directed to shave his armpit and apply hot soaks. In September 1967, he complained of having a sore on his right chest. He stated he had a knot on his chest beside his right nipple, which he had squeezed and pus came out of it. He was advised to apply hot soaks as much as possible. On separation examination in July 1968, his skin was reported as normal; however, the examiner noted he had numerous scars or identifying body marks on the right upper leg, the longest being five inches in length. A summary of defects and diagnoses read, “Marks and scars, [not considered disabling].” The earliest post-service treatment records associated with the claims file are private treatment records from Ochsner Clinic and associated medical facilities dating since September 2003. Some of those records are associated with the Veteran’s application and medical records related to his 2006 claim for disability benefits from the Social Security Administration (SSA). During a May 2004 visit with a primary care physician, his complaints included having lipomas on his legs and left arm. He stated he had approximately three lipomas on his right leg and one on his left arm, which he believed were blood clots and may require him to need bypass surgery. The physician examined the Veteran’s arms and legs, noting that the subcutaneous masses appeared to be lipomas. He discussed the lipomas “at length” with the Veteran and informed him of possible options. During a December 2004 consultation to evaluate pain in his neck, bilateral shoulders, and left arm, the Veteran disclosed a past medical history of multiple lipomas present and past surgical history including lipoma resections. In November 2012, he presented for a follow-up visit for ongoing medical problems. Examination of his skin revealed “several scatter lipomas.” In August 2014, the Veteran presented for an initial VA primary care visit. The nursing intake note reflects his report that he had a lump on his right side for which he takes Flexeril and Diclofenac. During the evaluation with a nurse practitioner, he reported having low back pain for years for which he takes Flexeril and a right-sided abdominal pain that was muscular in nature dating back to his time in the Marine Corps. He described it as a pulling sensation when it occurs, relieved by taking diclofenac. (The Veteran’s private treatment records document that diclofenac was prescribed at least as early as 2004 for shoulder pain, osteoarthritis of several joints, and low back pain. Flexeril (cyclobenzaprine) was prescribed in July 2013 for muscle spasms). Subsequent VA treatment records were silent for complaints, diagnosis, or treatment for lipomas. As detailed above, the Veteran was afforded a VA examination in January 2020 and a fee-basis examination in July 2020. The VA examiner did not provide a medical opinion as to the onset or etiology of the current lipomas identified on the Veteran’s right flank, bilateral upper arms, or anterior thighs. The July 2020 fee-basis examiner opined it was less likely than not that the current lipoma on the Veteran’s right side was incurred in or caused by service. The examiner considered his account of noticing a lump on his right flank shortly after basic training and being treated with anti-inflammatory pills. The examiner also considered service treatment records showing swelling and tenderness in the right inguinal area in March 1965, a knot with pus near the right nipple in September 1967, and an abdominal strain in November 1967. Citing literature from the Mayo Clinic, the examiner noted that a lipoma is a slow-growing, fatty lump that is most often situated between the skin and the underlying muscle layer. A lipoma, which feels doughy and usually is not tender, moves readily with slight finger pressure. Although the cause of lipomas is not fully understood, they tend to run in families, are usually detected in middle age but can occur at any age, and some people have more than one lipoma. Considering the medical and lay evidence of record, the evidence is at least in equipoise as to whether the Veteran’s current lipomas, starting with a single lipoma on his right flank, began during military service. Accordingly, all reasonable doubt is resolved in the Veteran’s favor and service connection is warranted for lipomas. Although vague, the Veteran’s June 1966 complaint of having pain in his right side appears to correspond with post-service account of first noticing a lump on his right side after he experienced right-sided pain after a training exercise. Similarly, the fact that the examiner determined that only “assurance” was required, rather than any treatment, would be consistent with the benign nature of lipomas. In addition, more than ten years before filing his claim for service connection, his private physician described multiple lipomas on the Veteran’s legs and left arms. In summary, although a lipoma is not clearly documented among the Veteran’s service treatment records and the July 2020 fee-basis examiner did not find a link between the current lipomas and the Veteran’s military service, he is competent to identify the location and basic nature of a lipoma and to describe the chronicity of the lump he noticed on his right side during service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for lipomas is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for acid reflux The Veteran contends he has “acid reflux” directly related to military service or as secondary to a claimed psychiatric disorder. In his October 2015 claim, he stated, “I take over-the-counter medication and have just lived with this condition.” The Veteran’s service treatment records are silent for complaints, diagnosis, or treatment related to acid reflux. In August 1965, he complained of fever, tightness in his chest, and pain upon inspiration. The diagnosis was bronchitis. In December 1967, he complained of the right side of his throat feeling sore, weakness, and chills. Later that month, he stated that none of the medications prescribed had relieved his throat pain and he had been unable to eat for two days. On examination, both tonsils were enlarged and had pus pockets. He was advised to continue his current treatment and the physician added Procaine penicillin. In June 1968, he complained of a two-day history of difficulty swallowing. Examination revealed no abnormality of his tonsils, but he had chest congestion. The examiner prescribed Phenergan. He returned two days later, stating that he was still having difficulty swallowing with tightness in his chest and throat. The examiner prescribed Ornade Spansules. On separation examination in July 1968, the Veteran’s mouth and throat and abdomen and viscera were reported as normal on clinical evaluation. Post-service private treatment records dating from September 2003 to March 2015 are silent for complaints, diagnosis, or treatment related to acid reflux. During a December 2003 visit, he denied any heartburn, nausea, vomiting, or chest pain during a review of systems. The assessment was upper respiratory infection. In August 2014, the Veteran presented for an VA primary care visit to establish care. He denied any difficulty swallowing, nausea, vomiting, or chest pain during a review of systems. A March 2015 VA urgent care note reflects he complained of a sore throat for the past two weeks with some trouble swallowing. The diagnosis was sore throat/pharyngitis. The physician prescribed Augmentin and referred the Veteran for an ENT consultation for a possible endoscopy. Two days later, the Veteran was afforded an ENT consultation and described a two-week history of sore throat and dysphagia, feeling as if food was getting stuck in the left side of his throat. He denied any nausea, vomiting, or unintentional weight loss. Following a CT scan of the soft tissues of his neck and physical examination, the impression was no suspicion of malignancy. Subsequent VA treatment records dating to June 2020 are silent for complaints, diagnosis, or treatment related to acid reflux. In December 2019, the Veteran was afforded a VA examination to evaluate his claimed acid reflux disability. He reported having a cough, burning, and acid in his throat even while sleeping and indicated he takes over-the-counter omeprazole (Prilosec) daily. He endorsed having signs and symptoms of dysphagia, reflux, regurgitation, and sleep disturbance caused by esophageal reflux four or more times per year. Following a review of the claims file and examination, the examiner explained there was no current diagnosis or acid reflux or gastroesophageal reflux disease (GERD), including any documented in current treatment records, and an esophageal disorder did not impact the Veteran’s ability to work. The examiner acknowledged the Veteran had complained of difficulty swallowing in June 1968 but explained that the records showed his tonsils had been enlarged at that time. Service connection for acid reflux is not warranted because the Veteran does not have a current diagnosis of acid reflux or GERD and has not had one at any time during the pendency of the claim of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2019 VA examiner evaluated the Veteran and considered the evidence that he experienced an episode of difficulty swallowing during service but determined that neither the evidence of record nor physical examination findings demonstrated a current disability manifested by acid reflux. Further, despite the claims file containing approximately 17 years of private and/or VA treatment records, none of the records reflects a diagnosis of acid reflux. In September 2020 correspondence, the Veteran’s attorney argued on his behalf that the December 2019 VA examination was inadequate because the examiner “failed to account for the Veteran’s lay statements,” which “are competent proof of the Veteran’s medical status.” The attorney asserted that the “examiner based the whole decision on the Veteran’s lack of treatment for his acid reflux.” Finally, the attorney stated that the Veteran “reported a continuity of symptoms for acid reflux since he was in service.” These arguments are not persuasive. The December 2019 VA examination is adequate to decide the claim. The report reflects the examiner did consider the Veteran’s lay statements, including the nature of his claimed disability, and examined him before concluding he did not have a current acid reflux or GERD disability. Also, in reviewing the electronic claims file, the examiner observed that the Veteran had not been diagnosed with acid reflux by any medical providers. Regarding the Veteran’s competence to identify a disability manifested by acid reflux, he is competent to describe many symptoms of acid reflux such as heartburn, regurgitation or vomiting, chest pain, or difficulty swallowing. However, to the extent he may assert that these symptoms were chronic in service and continued after service, such statements are not credible because they are unsupported and contradicted by the evidence of record, including his prior statements to private and VA treatment providers. Generally, he has denied experiencing these symptoms during visits with private and VA treatment providers. Furthermore, although he reported taking over-the-counter omeprazole, neither his private nor VA treatment records include this medication among his list of medications, and the records do not show that any medical provider advised him to take omeprazole or other antacids for acid reflux symptoms. In summary, the evidence of records shows the Veteran does not have a current acid reflux disability. As the preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for hypertension The Veteran contends that his current hypertension disability is directly related to his military service or secondary to his claimed psychiatric disorder. For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. During military service, the Veteran’s blood pressure was recorded at enlistment examination in May 1964 as 110/72 and at separation examination in July 1968 as 118/70. The earliest post-service medical evidence of record is a September 2003 private treatment record associated with the Veteran’s application for SSA disability benefits. At that time, he presented for evaluation of a sore throat. His past medical history included hypertension diagnosed in 1996. At present, he was taking Norvasc for hypertension. The assessment included hypertension. Subsequent private and VA treatment records reflect ongoing treatment for hypertension. Service connection for hypertension is not warranted on any basis. First, service connection must be denied on a direct basis because competent medical evidence of record establishes that hypertension was not incurred during military service. The records show the Veteran’s blood pressure was normal at enlistment and separation examination. In addition, there is no competent medical evidence of record indicating that the hypertension disability diagnosed in 1996 is otherwise etiologically related to any injury or disease during military service. Second, service connection for hypertension must be denied on a presumptive basis under 38 C.F.R. § 3.309(a) relating to chronic diseases because the Veteran’s hypertension is not shown to have manifested to a compensable degree within one year of separation from service. To the extent certain chronic diseases may be established through a demonstration of continuity of symptomatology rather than through a finding of nexus, the post-service evidence of record does not demonstrate a continuity of symptoms attributable to hypertension since separation from service. Rather, private treatment records document that the Veteran’s hypertension was diagnosed in 1996, more than 27 years after separation from service. The Veteran himself has not asserted that his hypertension was either diagnosed or manifested by symptoms any earlier than 1996. Finally, service connection for hypertension as secondary to a claimed psychiatric disability is precluded as a matter of law because, as detailed below, service connected has not been established for any psychiatric disability. In September 2020, the Veteran’s attorney argued on his behalf that VA “failed to explain why the Veteran’s hypertension . . . was not caused by service.” To be clear, the evidence shows hypertension was not incurred in service and there is no competent medical evidence or credible lay evidence indicating that the hypertension diagnosed in 1996 is otherwise related to service. The attorney also suggested that VA “failed to consider if [hypertension] could be service connected on a secondary basis,” adding that the Veteran is “explicitly raising the issue that [hypertension is] secondary to any of his service-connected disabilities, including the [disabilities claimed].” VA has acknowledged the argument that the Veteran’s hypertension was caused or aggravated by a psychiatric disability; however, because service connection has not been established for a psychiatric disability, service connection for hypertension on a secondary basis must be denied. Neither the Veteran nor his attorney has raised a more specific argument as to how any particular service-connected disability or a claimed disability has caused or aggravated his hypertension to warrant further consideration of service connection on a secondary basis. The preponderance of the evidence is against the Veteran’s claim for service connection for hypertension. Therefore, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. A compensable rating for right ear hearing loss from the date of claim and a compensable rating for bilateral hearing loss since September 13, 2018 The Veteran contends that a compensable disability rating is warranted for his hearing loss disability. On September 13, 2016, VA received the Veteran’s claim for “hearing aggravated by tinnitus.” Service connection had previously been established for right ear hearing loss and denied for left ear hearing loss because audiometric testing showed the Veteran did not have a left ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (describing when impaired hearing will be considered a disability for VA compensation purposes). Accordingly, the AOJ construed the Veteran’s communication as a claim to reopen the previously denied claim of service connection for left ear hearing loss and as an increased rating for right ear hearing loss. As indicated above, a September 2018 rating decision granted service connection for left ear hearing loss effective September 13, 2018, which is the first date audiometric testing confirmed a current left ear hearing loss disability. The AOJ notified the Veteran and his attorney that the grant of service connection for left ear hearing loss was “considered a full grant of benefits sought on appeal for this issue.” Accordingly, the issue in this case is whether a compensable rating is warranted for right ear hearing loss from September 13, 2016, including consideration of the one-year “look-back” period, and whether a compensable rating is warranted for bilateral hearing loss from September 13, 2018. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The disability rating of a hearing loss disorder is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average puretone hearing threshold level, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz), or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Where impaired hearing is service connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral I for rating purposes. 38 C.F.R. § 4.85(f). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must contain a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The evidence of record indicates the Veteran retired in 2002 from his career as a technician for a telephone company but returned to his job briefly from October 2005 to March 2006 after Hurricane Katrina. The Veteran was afforded a VA audiological examination in October 2016. He described difficulty hearing others in the presence of background noise and feeling embarrassed by his hearing impairment. He also reported that his tinnitus was so loud that it affected his ability to hear others speaking. Objectively, right ear puretone thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz were reported as 20, 30, 35, and 30 dB, respectively. For the left ear, puretone thresholds in the same frequencies were recorded as 20, 25, 30, and 30 dB, respectively. The average puretone threshold was 29 dB in the right ear and 26 dB in the left. Using the Maryland CNC test, speech recognition ability was 94 percent in the right ear and 96 percent in the left ear. Applying the above results to Table VI, a puretone threshold average of 29 dB and a speech discrimination of 94 percent in the right ear results in Level I hearing for that ear. Because left ear hearing impairment did not satisfy the criteria for a hearing loss disability under 38 C.F.R. § 3.385 at the time of examination, Level I hearing is assigned for that ear. Under Table VII, a Level I for the right ear combined with a Level I for the left ear results in a noncompensable rating. In September 2017, the Veteran’s attorney submitted a pure tone audiogram from a private medical facility charting August 2017 audiometry results. Unfortunately, the report is insufficient for rating purposes because it does not indicate whether a controlled speech discrimination test using the Maryland CNC was used to obtain the reported speech reception thresholds. In addition, the one-page chart does not include the name of the patient or other identifying information to confirm the results pertained to the Veteran. However, if the Board were to use the data from the private audiogram and use the speech discrimination scores from the October 2016 and September 2018 VA examination, the results of which were identical for the right ear and similar for the left ear, a compensable rating would not be warranted. The right ear puretone thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz appear to be recorded as 35, 40, 50, and 35 dB, respectively. For the left ear, puretone thresholds in the same frequencies appear to be recorded as 30, 40, 50, and 30 dB, respectively. The average puretone threshold would be 40 dB in the right ear and 38 dB in the left. Applying the above results and the VA speech discrimination scores from October 2016 and/or September 2018 to Table VI, a puretone threshold average of 40 dB and a speech discrimination of 94 percent in the right ear results in Level I hearing for that ear. A puretone threshold average of 38 dB and a speech discrimination of 92 percent (from the September 2018 VA examination) in the left ear results in Level I hearing for that ear. Again, under Table VII, a Level I for the right ear combined with a Level I for the left ear results in a noncompensable rating. Nevertheless, the Board reiterates that the August 2017 private audiogram is insufficient for VA rating purposes. On September 13, 2018, the Veteran was afforded an additional VA examination. Objectively, right ear puretone thresholds in the frequencies 1000, 2000, 3000, and 4000 Hz were reported as 35, 45, 45, and 45 dB, respectively. For the left ear, puretone thresholds in the same frequencies were recorded as 45, 50, 50, and 50 dB, respectively. The average puretone threshold was 43 dB in the right ear and 49 dB in the left. Using the Maryland CNC test, speech recognition ability was 94 percent in the right ear and 92 percent in the left ear. Applying the above results to Table VI, a puretone threshold average of 43 dB and a speech discrimination of 94 percent in the right ear results in Level I hearing for that ear. A puretone threshold average of 49 and a speech discrimination of 92 percent in the left ear results in a Level I for that ear. Under Table VII, a Level I for the right ear combined with a Level I for the left ear results in a noncompensable rating. Several days after the VA examination, the Veteran presented to the walk-in VA clinic for a hearing aid assessment. In December 2018, he received hearing aids. A February 2019 audiology note reflects his report that the fit and sound quality of his hearing aids had improved his overall speech understanding. The audiologist concluded the Veteran did not need adjustments to his hearing aids. Having considered the medical and lay evidence of record, an initial compensable rating for either right ear hearing loss since September 2016 or for bilateral hearing loss since September 2018 is not warranted at any time during the appeal. The October 2016 and September 2018 VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and are highly probative. The October 2016 VA examiner in particular elicited information about the effects of his hearing loss on his daily functioning, including his difficulty hearing in the presence of background noise. In addition, both examinations provided the requisite objective data for rating the Veteran’s hearing loss. These data consistently documented right ear hearing loss and bilateral hearing loss meeting the criteria for a noncompensable disability rating. In summary, the most probative evidence indicates that the Veteran’s hearing loss clearly falls within the criteria for a noncompensable rating for the duration of the claim. Therefore, noncompensable rating for right ear hearing loss since September 2016 and for bilateral hearing loss since September 2018 is proper throughout the appeal period and a higher rating is denied. As the preponderance of the evidence is against the Veteran’s claim for a higher rating than that assigned, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. The issue of service connection for erectile dysfunction is remanded. The Veteran seeks VA compensation benefits for erectile dysfunction and believes the current disability may be secondary to an acquired psychiatric disorder. Service connection has not been established for a psychiatric disorder. The evidence of record, however, indicates that erectile dysfunction had been diagnosed around November 2003, if not earlier—years before any diagnosed psychiatric disorder was documented in VA treatment records. Here, a May 2004 private treatment record reflects that the Veteran presented for a six-month follow-up visit and complained that Viagra was not helping him anymore and he wished to try Cialis instead. The assessment included erectile dysfunction. The Veteran’s service treatment records reflect that he was evaluated and treated for sexually transmitted infections from March to May 1965 (diagnosed as chancroid on glans penis in March 1965) and in March 1968 (gonorrhea). In December 1967, he also complained of impotence on three occasions, stating he had never experienced erectile dysfunction previously. The AOJ should obtain a medical opinion to determine whether the Veteran’s current erectile dysfunction began during service or is otherwise etiologically related to disease or injury in service. 2. The issue of service connection for a sleep disorder, to include insomnia and/or obstructive sleep apnea, is remanded. The Veteran contends he has sleep apnea or another sleep disorder directly related to military service and “possibly secondary” to a claimed mental disorder. In his October 2015 claim for service connection, he described having difficulty falling and staying asleep, sometimes waking up gasping for air, and snoring witnessed by his wife. Private treatment records and SSA disability application records dated in the mid-2000s document the Veteran’s complaints of sleep impairment due to physical pain. In April 2016, he told a VA social worker that his service-connected tinnitus interfered with his sleep. A June 2016 VA sleep study confirmed a diagnosis of mild obstructive sleep apnea. The claim for service connection for a sleep disorder must be remanded to obtain a medical opinion as to whether the Veteran has a current, chronic sleep disorder secondary to his service-connected tinnitus. The AOJ should arrange for a VA examination to obtain the necessary medical opinion. A summary of pertinent evidence of record is included herein. The Veteran’s service treatment records are silent for complaints, diagnosis, or treatment related to sleep apnea or sleep problems generally. At separation examination in July 1968, clinical evaluation findings were reported as normal other than identifying body marks and scars. His weight was recorded as 175 pounds. In June 2006, the Veteran filed a claim for SSA disability benefits asserting that high blood pressure; pain in his arms, shoulders, and neck; and muscle spasms limited his ability to work. He reported that these disabilities first bothered him in July 2002 and described weakness and numbness in his arms and pain preventing him from sleeping well at night. In a July 2006 SSA Adult Function Report, he indicated that pain in his arms, neck, and back affects his sleep, adding that he sits up in a chair until 2:00 or 3:00 a.m. and finds it “tough getting to sleep.” A December 2004 private consultation report associated with his SSA records reflects he was evaluated for pain in his shoulders and left arm that had been present since 1994. He denied any direct trauma but reported that before he retired from the telephone company, he used to carry ladders over his shoulders for many, many years. He described taking various medications for his pain and reported that his sleep was very poor. Subsequent private treatment records dating to March 2015 are silent for complaints, diagnosis, or treatment for sleep problems or sleep apnea and reflect that the Veteran consistently denied any fatigue during a review of systems. In August 2014, the Veteran established VA primary care and reported having insomnia. His weight was recorded as 217 pounds. The examiner prescribed Trazodone for sleep. Among VA treatment records dating to June 2020, Trazodone was last listed among his active medications in February 2016; a January 2016 surgery note indicates he last filled the prescription in June 2015. A February 2016 physical medicine rehabilitation consultation report reflects the Veteran denied problems with tinnitus during a review of systems. In April 2016, the Veteran met with a VA social worker for an assessment and reported feeling depressed for a few years. Regarding his sleep, he indicated that the ringing in his ears prevents him from sleeping well, sometimes he paces back and forth, and although he goes to sleep around 8:30 or 9:00 p.m., he wakes up around midnight and stays up for several hours. He reported taking a sleep medication, but it was not working. During a May 2016 geriatric psychiatry consultation, the Veteran complained that his tinnitus was “making him irritable,” he was not getting along with his wife and sleeping in different beds, and he was staying away from his grandkids who angered him. The psychiatrist observed that the Veteran fell asleep many times during the evaluation and changed the examination to evaluating “[signs and symptoms] of [obstructive sleep apnea] in this obese male.” He reported he had stopped taking Trazodone for sleep because he feared he would die in his sleep. The diagnosis was mood disorder due to untreated obstructive sleep apnea and tinnitus in the elderly. The psychiatrist placed an order for a sleep study. Later that month, the Veteran presented for a pulmonary consultation to evaluate his risk of obstructive sleep apnea. A June 2016 sleep study confirmed a diagnosis of mild obstructive sleep apnea, and he subsequently began using a CPAP. An August 2018 mental health consultation report reflects the Veteran’s complaint of having interrupted sleep. He stated he had been prescribed sleep medication that he does not use and that he had a CPAP that he does not use; he did not mention his service-connected tinnitus. During a February 2020 primary care visit, the physician noted that the Veteran was last seen for evaluation of his CPAP device in December 2017. The Veteran reported having no excessive daytime sleepiness and no increased fatigue. 3. The issue of service connection for an acquired psychiatric disorder, to include major depressive disorder and adjustment disorder, to include as secondary to service-connected tinnitus and/or a claimed sleep disorder, is remanded. An April 2016 treatment record reflects the Veteran’s report to a VA social worker that the ringing in his ears from service-connected tinnitus caused him not to sleep well. He also reported feeling depressed for a few years. During a May 2016 consultation with a geriatric psychiatrist, he complained that his tinnitus was making him irritable and he was not getting along with his wife. The diagnosis was mood disorder due to untreated obstructive sleep apnea and tinnitus in the elderly. An individual psychotherapy record from later in May 2016 details that the Veteran and social worker had discussed coping with his depression and irritability that may possibly stem from a sleeping disorder. The diagnosis was major depressive disorder, moderate, single episode. The AOJ previously obtained medical opinions as to whether a current psychiatric disorder was directly related to service or caused or aggravated by service-connected tinnitus. There is also some indication that a mood disorder such as major depressive disorder may be secondary to a sleeping disorder. The issue of entitlement to service connection for an acquired psychiatric disorder is dependent, in part, on the outcome of the service connection claim for a sleeping disorder. Because the claim for a psychiatric disorder is inextricably intertwined with that issue, it also must be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran’s entire electronic claims file and a copy of this Remand to an appropriate clinician to obtain a medical opinion regarding the etiology of the Veteran’s erectile dysfunction. Following a review of the claims file, the designated clinician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the current erectile dysfunction was incurred in service or otherwise etiologically related to disease or injury in service. In providing the requested opinion, the examiner should consider the service treatment records: (1) medical records dated from March to May 1965, which appear to reflect evaluation for possible syphilis and treatment for a sexually transmitted infection diagnosed as chancroid on the glans penis; (2) a December 1967 treatment record in which the Veteran complained of experiencing impotence on three occasions and never before having erectile dysfunction; and (3) a March 1968 treatment record documenting antibiotic treatment of gonorrhea after complaining of slight burning with urination and discharge. A detailed medical rationale must be provided for all opinions expressed. 2. Schedule the Veteran for a VA examination to determine whether any current sleep disorder, to include insomnia and/or obstructive sleep apnea, is secondary to his service-connected tinnitus. Provide the Veteran’s entire electronic claims file and a copy of this Remand to the designated examiner for review. Following a review of the claims file and examination, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current sleep disorder, to include insomnia and/or obstructive sleep apnea was caused OR is or has been aggravated by service-connected tinnitus. A detailed medical rationale must be provided for all opinions expressed. 3. If, and only if, service connection is granted for a sleep disorder, to include insomnia and/or obstructive sleep apnea, then the AOJ should obtain a medical opinion based on a review of the claims file from a psychiatrist or psychologist as to whether it is at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder, to include major depressive disorder or adjustment disorder, was caused OR is or has been aggravated by such sleep disorder. A detailed medical rationale must be provided for all opinions expressed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.