Citation Nr: 21007392 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-16 243 DATE: February 9, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED) is granted. Entitlement to an increased rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his ED is aggravated beyond its natural progression by his service-connected PTSD. 2. Resolving reasonable doubt in the Veteran’s favor, his PTSD was manifested by symptoms more closely approximating total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for ED are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. The criteria for an initial disability rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to August 1992. He appeals an August 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for ED. Also, before the Board of Veterans’ Appeals (Board) is the appeal of a January 2017 rating decision denying entitlement to service connection for a TBI and denying a rating greater than 70 percent for service-connected PTSD. A Board hearing was held in October 2020. A transcript is of record. Service Connection A Veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be evidence of (1) a current disability; (2) a service connected disability; and, (3) a nexus establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As to the third Wallin element, the current disability may be either (a) proximately caused by, or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends his ED is secondary to his service-connected PTSD. See June 2016 VA Form 21-4138. The Veteran has ED. See June 2016 VA examination report. The Veteran has been service connected for PTSD since March 2015. See January 2017 rating decision codesheet. Therefore, the first and second Wallin elements are met and not in dispute. As such, the crux of this claim centers on whether there is an etiological relationship between the Veteran’s ED and his service-connected PTSD. The Veteran consistently states his current ED began after a motor vehicle accident (MVA) in 2015 that was triggered by his PTSD. See, e.g., August 2017 VA treatment records (“experienced problems…since MVA 18 months ago triggered PTSD. This problem occurred rather abruptly…just prior to that event he had no problems with libido or ED.”). While the Veteran is not competent to offer opinions on complex medical matters such as whether his PTSD caused or aggravated his ED, he is competent to testify as to facts he personally observed or described; this includes recalling how and when his ED started. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). To expound on the etiology of his ED, the Veteran was afforded a VA examination and the record contains multiple VA endocrinology reports discussing the etiology of his ED. It is the Board’s duty to assess their probative value and weigh them against the entirety of the record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In June 2016, a VA examiner opined the Veteran’s ED was less likely than not proximately due to or the result of PTSD. As rationale, the VA examiner found the Veteran’s records contained a diagnosis of hypogonadotrophic “hypogonadism approximately 10 years ago” and testosterone treatment has helped his libido since this diagnosis; thus, hypogonadism was the cause of the Veteran’s ED. See June 2016 VA examination report (citing to November 2014 VA treatment records). As such, the VA examiner concluded the Veteran’s PTSD did not cause his ED. For aggravation, the VA examiner stated, “the Veteran emphasized to me that in the past six months, correlated with increased anxiety levels, his ED has markedly deteriorated and he is no longer able to achieve an erection. While PTSD may be an aggravating factor in his ED, he has not had recent endocrine or urologic follow-up and I am reluctant to attribute his ED to his PTSD.” Id. The Board finds the VA examiner’s opinion probative as he considered the record, the Veteran’s lay statements, and provided sufficient rationale for his opinion. In August 2017, the Veteran received an examination of his endocrine system. There, the Veteran’s endocrinologist noted his “testosterone level was excellent” during the appeal period, after his December 2015 MVA. See August 2017 VA treatment records. The endocrinologist noted the same statements made in the November 2014 VA treatment records, that the Veteran’s problem started “since an MVA 18 months ago triggered by PTSD. This problem occurred rather abruptly and there was a strong temporal relationship. Just prior to the event, he had no problems with libido or ED.” Id. In the examination assessment, the endocrinologist concluded “continued issues of reduced libido and ED appear to be a consequence of PTSD flareup” as his most recent testosterone level was adequate. Id. In August 2019, the same endocrinologist noted the Veteran lost significant weight, had adequate testosterone levels, and “still has difficulty with erections.” See August 2019 VA treatment records. He stated that, “likely some of [the Veteran’s] erection difficulties and reduced libido are related to his stress and PTSD and psychotropic medications.” Id. In August 2020, the Veteran’s annual endocrinology examination provided the same conclusion. See August 2020 VA treatment records. The Board finds the Veteran’s VA endocrinologist’s opinion highly probative and in-line with the June 2016 VA examiner’s opinion; the opinions were provided by an expert in the field who annually examined the Veteran, was familiar with his relevant history, and took his lay statements into consideration. After reviewing the entire record and weighing the medical opinions, the Board finds there is competent and credible medical evidence of record connecting the Veteran’s ED to his service-connected PTSD and the third Wallin element is met. Accordingly, the Board grants service connection for ED. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 53. Increased Rating The Veteran contends his service-connected PTSD is more severe than his 70 percent rating would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under Diagnostic Code 9411, a 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or name. Id. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). The Veteran was afforded a November 2016 VA examination to assess the severity of his PTSD symptoms. There, the VA examiner found the Veteran had near-continuous panic or depression affecting independent and appropriate function, chronic sleep impairment, memory loss, impaired judgment, disturbances of motivation and mood, difficulty adapting to stressful circumstances and maintaining relationships, and impaired impulse control. See November 2016 VA examination report. At the examination, the Veteran’s thought process was rigid, his speech was pressured and occasionally loud, and he appeared somewhat irritable with constricted affect. Id. After a review of the Veteran’s October 2020 Board hearing testimony and numerous VA psychiatric treatment records, the Board finds the Veteran exhibits hallucinations, has impairment in thought, suffers from severe memory loss to the extent of disorientation and being a danger to himself and others. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s symptoms more nearly approximate total social and occupational impairment, the rating criteria for a 100 percent disability rating. At the October 2020 Board hearing, the Veteran testified to being in “probably seven [MVAs] in the last four years” and he detailed moments where he lost time and came to “driving and [he doesn’t] remember” how he got there. See October 2020 Board hearing transcript at 7. The record corroborates the Veteran’s testimony of severe memory loss, including numerous events during the appeal period where he was disoriented and does not remember where he was or why he was there. See, e.g., November 2016 VA treatment records (“forgot about an event he had planned. Does not recall going through the preparations. Incidents driving and at home where he’s lost time. He did not recall his new therapist after his first visit.”); June 2017 VA treatment records (“lost time while driving Route 9…and did not know why he was there or whether to take the exit or Route 128”; April 2020 VA treatment records (“over the past few months, since being in an MVA…episodes of memory loss as well as dissociative episodes;” “does not remember Saturday”). VA physicians have attributed his memory loss and “loss of time” to his PTSD. See, e.g., January 2017 VA treatment records (“likely a multifactorial process, including mood/anxiety/PTSD”); October 2020 VA treatment records (“PTSD [is] believed to be primary factors contributing to his cognitive difficulties”). Further, the Veteran reported intrusive thoughts and visual hallucinations throughout the appeal period. See, e.g., December 2016 VA treatment records (“zoning out and difficulty focusing with driving”); July 2018 VA treatment records (“visual hallucinations”); August 2018 VA treatment records (“violent day-time intrusive hallucinations of images and thoughts of what he may do to his wife” “denies homicidal intent” “threw away his pocket knife, he was disturbed”); April 2019 Veteran statement (“I both disassociate and, on occasion, have visual or audio hallucinations”); October 2020 Board hearing transcript at 12, 20; October 2020 VA treatment records (“visual hallucinations”). On one occasion, the record reflects the Veteran “had some thoughts of death on Veterans Day” but denied any intent or desire to harm himself. See November 2016 VA treatment records. Nevertheless, the record reflects the Veteran “loses time” while driving and has been in MVAs, he contends, are a result of this psychiatric symptom. See October 2018 VA treatment records (“visual hallucination while driving…clipped the mirror on the car beside him”). His VA neurologist recommended the Veteran “stop driving” until further testing was completed and that he should not drive “when feeling overwhelmed with emotions.” See June 2017 VA treatment records; July 2018 VA treatment records. Despite this, the Veteran continued to drive and “lose time” during the appeal period. This evidence reflects the Veteran is a persistent danger to himself and others, he suffers from instances of severe disassociation and disorientation, and reported persistent hallucinations during the appeal period. Socially, during the appeal period, the record reflects the Veteran had the support of his daughter, assistant and, sometimes, his friends. See June 2018 VA treatment records (“walking with friends after work two times a week; living with daughter”); October 2020 Board hearing transcript at 13 (“assistant runs the office; takes care of him at work”). However, the record reflects the Veteran is unable to establish and maintain effective relationships due to his psychiatric symptoms. For example, the Veteran separated and divorced from his third wife during the appeal period. See November 2016 VA treatment records; August 2019 VA treatment records (“going though divorce”). As a result, he moved in with his daughter for over a year before moving next door to her and her family. See June 2018 VA treatment records (living with daughter); October 2020 VA treatment records (“lives next door to his daughter”). The Veteran reported “difficult” and “overstimulated” interactions with his family during holidays. See December 2016 VA treatment records. Additionally, the Veteran reported verbal altercations with his ex-wife and others during the appeal period. See, e.g., November 2016 VA treatment records; January 2017 VA treatment records (“several episodes of angry outbursts”); June 2017 VA treatment records (“inappropriate comments during a town meeting” and has a “loss of filter”). Further, the Veteran testified he “used to be comfortable going to the [VFW], but [he’s] not even comfortable doing that anymore” and does not interact with anyone other than his daughter and assistant. See October 2020 Board hearing transcript at 13-14. Overall, the record reflects the Veteran’s relationships with his daughter and assistant are more of a caretaker-type relationship than an effective social relationship. The Veteran reported his daughter assists with his activities of daily living (ADLs). See, e.g., April 2020 VA treatment records (“checks on his daughter once a day”); October 2020 VA treatment records (“daughter assists with bills, laundry, hygiene, shopping for food”). And during the appeal period, the Veteran noted his assistant was “essentially doing [his] job and covering for [him].” See April 2019 Veteran statement; see also November 2016 VA examination report (“he is relying more and more heavily on his assistant to check his work and remind him about work-related activities.). For example, in April 2020, the Veteran noted his assistant reminded him to “come into the office” and the Veteran testified that his assistant “basically had been running the office” as the Veteran is “probably only functional 20-25 percent of the time.” See April 2020 VA treatment records; October 2020 Board hearing transcript at 13. The Veteran’s occupational impairment is prevalent in the record. See, e.g., November 2016 VA examination report (“forgot about an event he had planned at work”); April 2017 VA treatment records (misplaced budget book); September 2018 VA treatment records (“very forgetful, especially at work, forgetting appointment time with clients/veterans”); April 2019 VA treatment records (“did not go home or to the office yesterday” after bringing knife to VA); August 2019 VA treatment records (“today is a bad day, not going into the office”). The Veteran testified that he leaves work during anxiety attack and walks down the block to hide “in the basement” of his closed VFW post until his symptoms subside. See October 2020 Board hearing at 12. In April 2020, the Veteran stated he could not work, he was “sleeping in his car overnight [and] spending time out in the woods.” See April 2020 VA treatment records. The Veteran testified he lives “more in [his] truck than [he does] any place else,” and that after the Board hearing ended, he “would not be able to drive home for a few hours” due to his psychiatric symptoms. See October 2020 Board hearing transcript at 24-25. Thus, based on the above evidence, the record reflects the Veteran’s psychiatric symptoms more closely reflect total social and occupational impairment. After review of the medical and lay evidence of record and providing the Veteran with the benefit of the doubt, the Board finds the Veteran’s symptoms more closely approximate total social and occupational impairment, the criteria for a 100 percent rating. Specifically, the Veteran exhibits persistent hallucinations, impaired thought, severe memory loss, disorientation, and is a danger to himself and others, among other severe psychiatric symptoms. Thus, the Veteran’s psychological symptoms are of such frequency, severity, and duration to more closely approximate total occupational and social impairment. As a result, the evidence is at least in equipoise and the Board finds that the criteria for an initial rating of 100 percent for PTSD have been met. REASONS FOR REMAND The Veteran claims the residuals of his in-service October 1988 TBI have continued since service and were exacerbated by a December 2015 MVA. See April 2019 Veteran statement. Specifically, the Veteran claims symptoms of memory loss, dizziness, tinnitus, and headaches have continued since his October 1988 head injury. Id. In November 2016, a VA examiner noted the Veteran’s in-service head injury “at least as likely as not represents TBI” but the Veteran “appeared to recover from this in a short time. See November 2016 VA examination report. As such, the VA examiner concluded the Veteran’s “current memory difficulties are not related to his head injury in the service” and since the Veteran stated his vertigo “did not begin until after his service… at this time it is less likely than not that residuals of service-connected TBI are present.” Id. The Board finds this VA opinion inadequate. First, the Veteran contends his symptoms of memory loss, dizziness, and tinnitus started after his in-service TBI and continued to the present day. See April 20199 Veteran statement; see also October 2020 Board hearing transcript at 7. Further, when the Veteran sought in-service medical treatment for his TBI, he contends he “greatly understated [his] symptoms and did not seek additional treatment” for fear of the adverse effects it would have on his military career. Id.; October 2020 Board hearing transcript at 4-5. The Veteran is competent to testify to facts he personally observed; this includes recalling the symptoms and history of his memory loss, dizziness, and tinnitus. See Layno, 6 Vet. App. at 469. On remand, the examiner must consider the Veteran’s lay contentions of continued symptomatology. Second, the VA examiner did not consider the Veteran’s April 1992 separation examination which noted the Veteran had hearing loss, “headaches for 5 years,” and a “head injury.” Additionally, since the VA examination, the Veteran underwent multiple neurology evaluations. In January 2017, a VA neurologist concluded the Veteran’s memory loss “is likely a multifactorial process, including mood/anxiety/PTSD, prior TBI and medication effect (clonazepam).” See January 2017 VA treatment records. In October 2020, a neuropsychological report found the Veteran’s psychiatric symptoms were primary factors contributing to his cognitive difficulties and noted “it is less likely that direct effects related to the Veteran’s history of possible mild TBI are primary factors contributing to his current cognitive presentation….” See October 2020 VA treatment records. As there have been multiple conflicting medical assessments since the November 2016 VA examination, a remand is required for an examiner to fully assess the medical evidence of record. Additionally, the Veteran’s service personnel records are not on file. VA’s duty to assist includes assisting the Veteran in the procurement of service department records. See 38 C.F.R. § 3.159(c). On remand, the AOJ should make efforts to obtain these personnel records. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Obtain the Veteran’s complete military personnel records. If any are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 3. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran’s claimed TBI. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. Following review of the record and examination of the Veteran, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Veteran’s TBI was incurred in or is otherwise related to the head trauma received in-service? The examiner is directed to the November 2016 VA examiner’s finding that the Veteran suffered an in-service TBI in October 1988. The examiner is further directed to the following: (a) the Veteran’s April 2019 statement that he had memory loss, “ringing, and dizziness” since his in-service head injury and “greatly understated [his] symptoms and did not seek additional treatment” in service for fear of it ending his military career; (b) the Veteran’s October 2020 Board hearing testimony at pages 4-7; (c) April 1992 separation examination noting “headaches for 5 years,” hearing loss, and a head injury; (d) January 2017 VA neurology examination (memory loss “is likely a multifactorial process, including mood/anxiety/PTSD, prior TBI and medication effect (Clonazepam)”); and, (e) October 2020 VA neuropsychological report. The examiner should note the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. As such, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Thereafter, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.