Citation Nr: 21006560 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-52 129 DATE: February 4, 2021 ORDER Entitlement to a compensable disability rating for erectile dysfunction is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Symptoms of the Veteran’s erectile dysfunction do not more nearly approximate an internal or external penile deformity. 2. The Veteran’s tinnitus began during active service and is etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.115b, Diagnostic Code 7599-7522. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1965 until his honorable discharge in November 1967. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a June 2015 rating decision by the Lincoln, Nebraska, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied a compensable rating for erectile dysfunction and service connection for tinnitus. In October 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits, 38 U.S.C. §§ 1154(a); 5107(b), and when rating disabilities, Golden v Shulkin, 29 Vet. App. 221, 224 (2017) (citation omitted); see 38 C.F.R. §§ 4.1, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (service connection); 38 C.F.R. § 4.3 (disability rating). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analyses below focus on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. 1. Entitlement to a compensable disability rating for erectile dysfunction The Veteran’s erectile dysfunction stems from his initial service connection for prostate cancer rather than an individual claim. In a July 2005 rating decision, a separate RO granted the Veteran service connection for “prostate cancer due to herbicide exposure with complications of erectile dysfunction and urgency, and nocturia,” with a 10 percent disability rating as of October 27, 2004. The Veteran did not receive a separate disability rating for erectile dysfunction. He also received special monthly compensation based on loss of use of a creative organ, which has continued. In a June 2015 rating decision, the RO separately evaluated the Veteran’s erectile dysfunction disability apart from his prostate cancer and concluded a noncompensable disability rating was appropriate from October 27, 2004. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Rating Criteria – Erectile Dysfunction Erectile dysfunction is not specifically listed within the Rating Schedule. When an unlisted condition is encountered, it is permissible to rate the condition under a DC that is closely related to the disability. 38 C.F.R. § 4.20. An adjudicator should select a DC based on the function affected, the anatomical location, and symptomatology to ensure the disabilities are closely analogous. Diagnostic Code 7522 is the only provision in the VA Rating Schedule under which erectile dysfunction is evaluated. Diagnostic Code 7522 instructs VA to assign a 20 percent disability rating when there is both (1) loss of erectile function and (2) deformity of the penis. 38 C.F.R. § 4.115b, DC 7522; see also Williams v. Wilkie, 30 Vet. App. 134, 138‒39 (2018). Because DC 7522 only provides for a 20 percent disability rating, a noncompensable rating will be assigned when the requirements for the 20 percent rating have not been met. 38 C.F.R. § 4.31 (“In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.”) Diagnostic Code 7522 requires a “deformity” for a compensable rating. VA has not expressly defined this term, but the United States Court of Appeals for Veterans Claims has. “Deformity” is a “distortion of any part or general disfigurement of the body.” Williams, 30 Vet. App. at 138 (citing Dorland’s Illustrated Medical Dictionary 478 (32d ed. 2012)). According to the Williams court, “deformity” under DC 7522 means a “distortion [or general disfigurement] of the penis, either internal or external.” 30 Vet. App. at 138. Analysis The Veteran underwent an in-person VA examination in May 2015 in connection with his prostate cancer and associated residuals. The VA examiner completed a “male reproductive system conditions disability benefits questionnaire,” which was primarily focused on the Veteran’s voiding dysfunction as related to his prostate cancer. The VA examiner also reviewed the Veteran’s VA treatment records. The VA examiner found the Veteran’s erectile dysfunction prevented him from achieving an erection for penetration and ejaculation. The VA examiner did not exam the Veteran’s penis because it was not relevant to the condition for which the VA examination was being offered at that time. Absent evidence to the contrary, the Board finds the May 2015 VA examiner was competent to exam the Veteran and report her medical findings. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner’s overall examination and medical findings credible and probative. The examination was based on an accurate review of the Veteran’s medical records and an in-person examination. Although the VA examiner did not examine the Veteran’s penis, such an examination was unnecessary at that time. During an April 2016 VA urology consult, the Veteran reported his penis had shrunk. During May 2017 and November 2017 VA dermatology consults, the medical professionals noted the Veteran’s genitalia were unremarkable. During August 2017, April 2018, and August 2018 VA urology consults, the urologists recorded that the Veteran’s genitalia were normal. Absent evidence to the contrary, the Board finds the respective medical professionals are competent to report their medical and lay observations. The Board also finds the respective medical professionals are credible and their findings are probative as to whether the Veteran has a “deformity” of his penis. Significantly, the Veteran has never asserted that he had specific penile “deformity.” Based on the evidence of record, the Board broadly interprets his claim for a 20 percent disability rating to be based on the size of his penis. The Veteran’s wife submitted a letter on his behalf, dated October 14, 2015. She stated that when the Veteran was diagnosed with prostate cancer and treated with medication his sexual prowess diminished because he was unable to achieve an erection. She also stated that his penis shrunk to the point that the Veteran told her that he had to sit down to urinate. The Board finds the Veteran is competent to report his lay observations of his genitalia, past and present, and his sensations and experiences associated with his intimate life and urination. Likewise, the Board finds that his wife is competent to report her lay observations of the Veteran’s genitalia and her experiences with the Veteran. The Board finds their respective statements credible and probative in this case. During the Veteran’s September 2020 Board hearing, his representative questioned the Veteran about medical evidence in support of his claim for an increased rating. The Veteran testified that he was going to see a urologist and obtain a medical opinion about his erectile dysfunction, which he would submit within 60 days of the hearing. September 2020 Board Hearing Transcript, at 2‒3. To note, the Veteran’s case file does not contain any additional evidence following the hearing relating to a medical opinion. The Veteran provided no further testimony on this subject. The Board finds the Veteran’s testimony and lay statements, his wife’s lay statements, and the June 2015 VA examination establish that the Veteran has experienced a loss of erectile function. This, however, is only one component of erectile dysfunction for VA rating purposes. As to the second element, a deformity, the Board finds the evidence weighs against the claim. The definition of “deformity” in this context is quite broad. Yet, the Board will not read the definition beyond its reasonable limitations. The size of the Veteran’s penis, in this case, does not qualify as “distortion” or “general disfigurement” of the penis. The Board does not question the Veteran or his wife about their lay observations of the Veteran’s penis. But they have not provided any reasonably specific or general information about the size of the Veteran’s penis, other than to say it is smaller. This information does not inform the Board of when the size of the Veteran’s penis was noticeably smaller, if there is any fluctuation in size, or to what degree the size of his penis changed. Certainly, it cannot be that any change in size, not matter how miniscule, constitutes a “deformity” or “general disfigurement.” The Board recognizes that the Veteran has stated his ability to urinate standing up has been affected, but there is no competent evidence that a penile deformity caused this. In fact, the Veteran reported he did not have urinary problems according to an October 2015 VA nursing admission evaluation note, a July 2016 VA clinical note, and a November 2018 VA nursing admission evaluation note. The Board finds the 2016, 2017, and 2018 VA medical professionals’ lay and medical observations of the Veteran’s penis more probative as to whether his penis had a “deformity.” The respective medical professionals who recorded their observations of the Veteran’s penis found it unremarkable or normal. Notably, these medical professionals were dermatologists or urologists, each trained to detect abnormalities of the penis, either internally or externally, or both. Therefore, the Board finds the probative value of the medical professionals’ judgments, noting no deformities of the Veteran’s penis, outweigh the probative value of the Veteran and his wife’s broad and general statements as to the reduction in size of his penis. To be clear, the Board is not saying that size can never constitute a “deformity.” Rather, in this case, the broad and general assertation of a reduction in the Veteran’s penis size, without more, does not constitute a deformity under DC 7522 for the reasons explained. Accordingly, the Veteran is not entitled to a 20 percent disability rating for erectile dysfunction. 38 C.F.R. § 4.115b, DC 7522. 2. Entitlement to service connection for tinnitus Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability As to the first element of service connection, a current disability, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). The Veteran testified that while in service, he tripped a booby-trapped grenade in Vietnam, which knocked him unconscious for about 30 seconds. He noticed ringing in his ears upon regaining consciousness. He thought the ringing would go away with time, but it did not. He testified that it became more noticeable when it was quiet and as he grew older. September 2020 Board Hearing Transcript, at 8. He is currently most aware of the “buzzing” in his ears at nighttime. During his June 2015 VA audiology examination, the Veteran did not specify a date or circumstance during which he noticed an onset of tinnitus. He generally reported that he noticed it about 10 to 15 years ago. He described symptoms associated with both ears and that his symptoms were constant. He stated that the symptoms woke him during the night. Considering the foregoing evidence, the Board finds the Veteran’s report and testimony of symptoms of bilateral tinnitus are competent, credible, and probative. As there is no evidence to the contrary, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Board finds the evidence supports an in-service event reasonably related to the Veteran’s tinnitus. Applicable to this case is 38 U.S.C. § 1154(b), which “reduce[s] the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease” by mandating that VA “accept as sufficient proof of service[ ]connection . . . satisfactory lay or other evidence of service incurrence or aggravation” of an injury or disease “if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.” See Dalton v. Nicholson, 21 Vet. App. 23, 36‒37 (2007); 38 C.F.R. § 3.304(d). In other words, section 1154(b) relaxes the evidentiary requirements for establishing an in-service incurrence or aggravation of a disease or injury for combat-related compensation claims if the veteran meets the requirements set forth therein. Section 1154(b) “sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute.” Collette v. Brown, 82 F.3d 389, 392‒93 (Fed. Cir. 1996). 1) First, it must be determined whether the veteran has proffered satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Id. 2) Second, it must be determined whether the proffered evidence is consistent with the circumstances, conditions, or hardships of such service. Id. 3) Third, if these two inquiries are met, the Secretary “shall accept” the veteran’s evidence as sufficient proof for purposes of service connection even if no official record of such incurrence exists. Id. But, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). As to evidence that may be considered at each stage of this three-step process, the Federal Circuit stated: [Section] 1154(b) contemplates a sequential analysis in which the first step is an inquiry as to whether the veteran has presented “satisfactory” evidence of service-connected injury or disease. That inquiry requires a determination as to the credibility of the veteran’s evidence standing alone, not a weighing of the veteran’s evidence with contrary evidence. Nor does the second inquiry require the weighing of the veteran’s evidence with contrary evidence. It is only in the third step . . . that evidence contrary to the veteran’s claim of service connection . . . comes into play. Id. at 394. “Satisfactory evidence” in step one of section 1154(b) means “credible evidence.” Caluza v. Brown, 7 Vet. App. 498, 510 (1995). Section 1154(b) does not provide a substitute for proof of either a current diagnosed disability or medical-nexus evidence. See Brock v. Brown, 10 Vet. App. 155, 162 (1997) (“[T]he reduced evidentiary burden provided for combat veterans by 38 U.S.C. § 1154(b) relate[s] only to the question of service incurrence, “that is, what happened then—not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required.”). A combat veteran may invoke the section 1154(b) presumption to show both that an event that allegedly caused a disability occurred in service and that the claimed disability itself was incurred in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (“[A]lthough the record contained evidence of the cause of [the veteran’s] disability—acoustic trauma mortar blasts . . . —he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.”) (emphasis in original). In Reeves, the Federal Circuit reasoned that this distinction is useful because if a veteran is able to “use the section 1154(b) presumption to show that he incurred a permanent hearing disability in service, it presumably would [be] far easier for him to establish that there was a nexus between his military service and [a hearing disability].” Id. Invoking section 1154(b) on the Veteran’s behalf, the Board easily finds that he experienced an in-service event, that being direct exposure to a grenade detonation. The Veteran aptly testified about his service in Vietnam, which included triggering a booby-trapped grenade. In his October 2017 VA Form 9, appeal to the Board, he stated this event occurred in November 1966. He also generally asserted within his documents that he was exposed to artillery fire, bombs, and other weapons during his service. His military DD-214 indicates his military occupational specialty was as a weapons infantryman and he received the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantry Badge, and the Purple Heart Medal. Notably, the Purple Heart Medal. Therefore, even though there is no documentation that the Veteran experienced or suffered wounds associated with the detonation of a bomb in service, the Board is satisfied that he has provided reasonable lay evidence, which is consistent with the circumstances of his service, to establish an in-service event and that his tinnitus began in service. 38 U.S.C. § 1154(b). Thus, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s tinnitus and his in-service incurrence, the Board finds it is at least as likely as not that the Veteran’s tinnitus is etiologically linked to his military service. While the June 2015 VA audiologist opined that the Veteran’s tinnitus was less likely than not due to his military service, the Board does not find the opinion probative because the examiner did not consider the Veteran’s experiences in Vietnam, to include his military occupational specialty as a weapons infantryman, nor his exposure to a grenade detonation or other artillery fire. See Dalton v. Peake, 21 Vet. App. 23, 39‒40 (2007) (a medical opinion is inadequate if it does not take into account a veteran’s reports of symptoms and history, even if recorded in the course of the examination). The Board finds the Veteran’s statements and testimony about his combat experiences in Vietnam credible, particularly in light of his service medals as documented within his DD-214. The Veteran’s consistent statements and testimony about experiencing tinnitus since service and the worsening of tinnitus over the past two decades are likewise credible. The Board also finds his statements and testimony are the most probative evidence of record as to a connection between his tinnitus and military service. Therefore, the Board finds the evidence establishes the Veteran’s tinnitus is at least as likely as not etiologically related to his active military service. Thus, the third element is satisfied. Accordingly, service connection is warranted for tinnitus. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.