Citation Nr: 21009764 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-26 750 DATE: February 23, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. Entitlement to an evaluation in excess of 10 percent for hypertension is denied. Entitlement to a compensable evaluation for erectile dysfunction is denied. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. New and material evidence has been received, and the claim of service connection for hearing loss is reopened. New and material evidence has not been received, and reopening of the claim for service connection for an anxiety disorder is denied. New and material evidence has not been received, and reopening of the claim for service connection for major depressive disorder is denied. New and material evidence has been received, and reopening of the claim for service connection for a low back disability is reopened. Entitlement to service connection for hepatitis is denied. Entitlement to service connection for agoraphobia is denied. Entitlement to service connection for sleep disturbance is denied. Entitlement to an earlier effective date than July 29, 2014 for the grant of service connection for erectile dysfunction is denied. Entitlement to an earlier effective date than July 29, 2014 for the grant of special monthly compensation based on loss of use of a creative disorder is denied. Entitlement to compensation under 38 U.S.C. § 1151 for kidney disease is denied. Entitlement to compensation under 38 U.S.C. § 1151 for an ear disability is denied. Entitlement to special monthly compensation for the Veteran's spouse based on the need for regular aid and attendance is denied. REMANDED Entitlement to service connection for osteoarthritis is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to specially adapted housing is remanded. Entitlement to a special home adaption grant is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is assigned a 10 percent disability rating, the maximum evaluation authorized under Diagnostic Code 6260, and there are no exceptional circumstances. 2. The Veteran’s hypertension has not manifested with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 3. The Veteran’s erectile dysfunction is not characterized by a deformity of the penis. 4. The Veteran’s PTSD has not been manifested by total occupational and social impairment. 5. Service connection for hearing loss was denied in a September 2013 rating decision that was not appealed and became final. 6. Evidence added to the record since the September 2013 rating decision relates to unestablished facts necessary to substantiate the claims of service connection for hearing loss, and raises the possibility of substantiating the claim. 7. Service connection for anxiety disorder and major depressive disorder were denied in a September 2013 rating decision that was not appealed and became final. 8. The evidence related to anxiety disorder and major depressive disorder received since the September 2013 rating decision is new but fails to show that the Veteran has anxiety disorder and major depressive disorder that may be related to service. 9. Service connection for a low back disability was denied in an April 2009 rating decision that was not appealed and became final. 10. Evidence added to the record since the April 2009 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a low back disability, and raises the possibility of substantiating the claim. 11. The preponderance of the evidence is against finding a disability of hepatitis at any time during the rating period on appeal. 12. The preponderance of the evidence is against a finding that agoraphobia was incurred in active service or is otherwise related to an in-service injury or disease. 13. The preponderance of the evidence is against finding a disability of sleep disturbance independent of sleep apnea or PTSD at any time during the rating period on appeal. 14. On July 29, 2014, more than one year following discharge from active service, the Veteran filed a claim of service connection for erectile dysfunction. 15. On July 29, 2014, more than one year following discharge from active service, the Veteran filed a claim for special monthly compensation based on loss of use of a creative disorder, and service connection for erectile dysfunction was not in effect prior to this date. 16. The Veteran’s kidney disease and ear disability has not been shown to have resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable. 17. The weight of the evidence is against a finding that the Veteran’s spouse requires regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.87, Diagnostic Code 6260. 2. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 3. The criteria for a compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115B, Diagnostic Code 7522. 4. The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 5. Evidence added to the record since the September 2013 rating decision denying service connection for hearing loss is new and material and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. Evidence added to the record since the September 2013 rating decision denying service connection for anxiety disorder is not new and material and the claim for service connection is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. Evidence added to the record since the September 2013 rating decision denying service connection for major depressive disorder is not new and material and the claim for service connection is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 8. Evidence added to the record since the April 2009 rating decision denying service connection for a low back disability is new and material and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for service connection for hepatitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for agoraphobia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for service connection for sleep disturbance have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 12. The criteria for an earlier effective date than July 29, 2014 for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 13. The criteria for an earlier effective date than July 29, 2014 for the grant of special monthly compensation based on loss of use of a creative disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 14. The criteria for compensation under 38 U.S.C. § 1151 for kidney disease have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 15. The criteria for compensation under 38 U.S.C. § 1151 for an ear disability have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 16. The criteria for special monthly compensation for the Veteran's spouse based on the need for regular aid and attendance have not been met. 38 U.S.C. § 1115; 38 C.F.R. § 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 2000 to November 2004. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in June 2020. A transcript is of record. Increased Rating Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when 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). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation in excess of 10 percent for tinnitus Tinnitus is currently rated 10 percent under 38 C.F.R. § 4.87, Diagnostic Code 6260. This is the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, or, for that matter, an evaluation in excess of 10 percent on any basis, the Veteran’s appeal must be denied on a schedular basis. Sabonis v. Brown, 6 Vet. App. 426 (1994). Since the Veteran has been assigned the maximum schedular rating, the Board will consider whether he is entitled to an extraschedular rating. The rating schedule represent as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The United States Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. These criteria involve distinct elements, each of which must be satisfied to warrant extraschedular referral. Chudy v. O'Rourke, 30 Vet. App. 34, 37-38 (2018); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). However, if either of the first two elements is not satisfied, then referral is not warranted. Chudy, 30 Vet. App. at 37-38; Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016). The Veteran had a VA examination in August 2015 at which he reported recurrent tinnitus that he described as constant bilateral ringing. Tinnitus made it difficult for him to fall asleep. At the June 2020 Board hearing the Veteran testified that tinnitus made it difficult for him to deal with noisy environments. The Board finds that the symptoms associated with the Veteran’s tinnitus are fully contemplated by the rating criteria and the assigned rating. The medical evidence fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate in terms of marked interference with employment or hospitalizations for tinnitus, of which there have been none. Therefore, the claim for an evaluation in excess of 10 percent for tinnitus is denied. 2. Entitlement to an evaluation in excess of 10 percent for hypertension Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). Hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Note (1) to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term 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. Note (2) provides that hypertension that is due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be rated as part of the condition causing it rather than by a separate rating. Note (3) to Diagnostic code 7101 provides that hypertension is to be rated separately from hypertensive heart disease and other types of heart disorders. 38 C.F.R. § 4.104. The Veteran had a VA examination in August 2015 at which the blood pressure readings were 146/90, 148/88, and 142/88. Subsequent VA treatment records show systolic pressure as high as 152 and diastolic pressure as high as 91. At a June 2018 Gulf War VA examination, blood pressure readings were 168/98, 152/91, and 156/91. February 2019 VA treatment records note that there was a slight elevation in blood pressure from the last visit. The blood pressure readings at January 2019 treatment were 128/72 and 142/85. VA treatment records show systolic pressure as high as 158 and diastolic pressure as high as 91. The Veteran has taken lisinopril and metoprolol for high blood pressure. The VA examinations and treatment records show that at no time has the diastolic pressure been predominantly 110 or more or the systolic pressure predominantly 200 or more. The Board also notes that the record shows that the Veteran takes medication to maintain his blood pressure control. The use of medication is contemplated by the rating criteria. Therefore, the Board finds that the Veteran’s hypertension most nearly approximates the criteria for a 10 percent rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code 7101. Because the evidence is against the claim for an evaluation in excess of 10 percent for hypertension, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Entitlement to a compensable evaluation for erectile dysfunction Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. At an August 2015 examination arranged through VA the Veteran’s penis and testes were normal. The record, including the VA treatment records and Veteran’s statements, do not indicate that there is a deformity of the penis. Therefore, the Veteran does not qualify for a 20 percent rating, the next highest available. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Furthermore, special monthly compensation for loss of use of a creative organ is already in effect. Because the evidence is against the claim for a compensable evaluation for erectile dysfunction, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. 4. Entitlement to an evaluation in excess of 70 percent for PTSD is remanded. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, is rated 70 percent. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran had an examination arranged through VA in August 2015 at which it was noted that he had recurrent dreams, intrusive memories, physiological and emotional distress in response to traumatic triggers, avoidance behavior, negative cognitive alterations and moods, irritability, hypervigilance, exaggerated startle response, and poor concentration. The examiner felt that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran last experienced suicidal thoughts in December 2014 and had been hospitalized for three days in August 2014 for suicidal ideation and panic attacks. In September 2015 the Veteran wrote that he had four to five panic attacks and nightmares a day on top of periods of suicidal thoughts. Dr. N, a VA treating psychiatrist, wrote that the Veteran was permanently and totally disabled due to PTSD. The Veteran had trouble with stressful circumstances, was easily overwhelmed with stress, and was prone to periods of violence. He could not manage any type of job requirements due to extreme anxiety, panic attacks, increased irritability, and difficulty interacting with co-workers. At a private psychiatric examination in November 2015 the Veteran was oriented to time, place, and person. The Veteran reported having a good day because he had gotten through his allotted tasks with only a few panic attacks. The day before he had basically been incapacitated by anxiety for the entire day. His anxiety was worse in the morning, when he worried about what would happen during the day. The Veteran denied current suicidal or homicidal ideation or a history of visual or auditory hallucinations. There were no formal thought disorders or delusions on examination, and no psychosis was seen. Short and long-term memory were intact. Insight was limited and judgment was fair. The Veteran had consistent difficulty maintaining friendships and social relationships. The Veteran has continued to have VA psychiatric treatment. At May 2016 VA treatment he denied suicidal or homicidal ideation or psychosis. He enjoyed spending time with his stepchildren. His PTSD symptoms were noted to be stable. Insight and judgment were intact, and he was oriented to time, place, person, and situation. The Veteran reported at September 2017 VA treatment that his mood was average, and he denied anhedonia. It was noted that he enjoyed spending time with his family. The Veteran did not have suicidal or homicidal ideation or psychosis, had nightmares two to three times a week, was hypervigilant with exaggerated startle response, and had increased irritability and anger due to increased pain. The Veteran was noted to be dressed casually and appropriately. He had good eye contact and was cooperatively and calm. The Veteran reported occasional visual hallucinations and shadows at May 2018 VA treatment. There were no suicidal or homicidal ideations or psychosis. Insight and judgement were intact, and the Veteran was oriented to time, place, person, and situation. The Veteran was noted to be forgetful at December 2018 VA treatment. He reported nightmares two times per week, increased irritability and anger, hypervigilance, and exaggerated startle response at April 2019 VA treatment. At both the December 2018 and April 2019 VA treatment the Veteran did not have suicidal or homicidal ideation or psychosis. Insight and judgement were intact, and he was oriented to time, place, person, and situation. An October 2019 record noted that he enjoyed walking, going to the gym, and his dog and children. At February 2020 VA treatment the Veteran reported that his mood was “pretty good.” The Veteran’s wife was with him at the appointment, and they were happy and excited that she was pregnant. He enjoyed doing odd jobs and projects in his garage. The Veteran slept for two and a half hours a night and had some problems with short-term memory and concentration. There was no suicidal or homicidal ideation or psychosis. The Veteran had upsetting nightmares three times a week, was hypervigilant, and had an exaggerated startle response. The treating psychiatrist noted that the Veteran was dressed casually and appropriately, was engaged, had good eye contact, and was cooperative and calm. Speech was normal, mood okay, insight and judgement were intact, and the Veteran was oriented to time, place, person, and situation. He was to continue his current medications with an increase in the dosage of Bupropion. The Veteran testified at the June 2020 Board hearing new medication he had been on since 2019 was helping with nightmares but was making it more difficult for him to sleep. He had nightmares 22 nights a month, and had panic attacks at his last job. After review of the competent and probative evidence, the Board finds the Veteran’s PTSD most nearly approximates the criteria for the current 70 percent rating. Specifically, the evidence shows that the Veteran’s disability picture is more nearly approximated by one involving deficiencies in most areas including work, family, judgment, thinking, and mood, rather than total occupational and social impairment. The Veteran has not had gross impairment in thought processes or communication. The record shows that he has been oriented to time, place, person, and situation, and insight and judgment have been intact. While the Veteran reported occasional visual hallucinations and shadows at May 2018 VA treatment, the record does not otherwise show hallucinations or psychosis. The Veteran has maintained his relationship with his wife, and the record does not show that he is a persistent danger to hurt himself or others, In this regard, he was hospitalized in 2014 for suicidal thoughts. As there have been no hospitalizations since 2014 there is no peristent showing of self-harm. Moreover, there is no showing of grossly inappropriate behavior. In terms of interests, he enjoys working on projects in his garage, taking walks and spending time he with his stepchildren. Thus, total social impairment has not been shown. The Board again acknowledges the Veteran’s suicidal ideation and understands that this is a serious symptom. However, in this case the weight of the evidence is against finding that such ideation, or any other symptom or combination of symptoms has resulted in total occupational and social impairment, as required for a 100 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Because the evidence preponderates against the claim for an evaluation in excess of 70 percent for PTSD, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Service Connection A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A service connection claim must be accompanied by evidence establishing that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013) (to the effect that where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate, or the previously diagnosed condition had gone into remission.). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 5. Whether new and material evidence has been submitted to reopen the claim of service connection for hearing loss Service connection for hearing loss was denied in a September 2013 rating decision. The Veteran did not appeal the September 2013 rating decision, and new and material evidence was not received during the appeals period. Therefore, the September 2013 rating decision became final. See 38 C.F.R. § 3.156(b). At the time of the September 2013 rating decision, the evidence of record included the service treatment records, which do not show any complaints, treatment, or diagnoses related to hearing loss. The Veteran had a VA examination in March 2009. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 15 15 LEFT 15 20 20 20 15 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The Veteran reported that he served in security and on the flight line, and he was involved in weapons training. He had difficulty hearing on the telephone, in large rooms, in conversations, and in a restaurant. The new evidence since the September 2013 rating decision includes an August 2015 examination arranged through VA at which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 25 30 LEFT 25 20 20 25 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The Veteran reported that he had trouble hearing people at times. He fired weapons during service without ear protection. The Veteran testified at the June 2020 Board hearing that his hearing loss had gotten worse since the 2015 examination. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened. See Shade, 24 Vet. App. at 117. Specifically, the new evidence suggests that the Veteran may meet the criteria for hearing loss under 38 C.F.R. § 3.385. Therefore, the additional evidence is both new and material, and the claim for service connection for hearing loss is reopened. 6. Whether new and material evidence has been submitted to reopen the claim of service connection for an anxiety disorder 7. Whether new and material evidence has been submitted to reopen the claim of service connection for major depressive disorder Service connection for an anxiety disorder and major depressive disorder were denied in a September 2013 rating decision. The Veteran did not appeal the September 2013 rating decision, and new and material evidence was not received during the appeals period. Therefore, the September 2013 rating decision became final. See 38 C.F.R. § 3.156(b). At the time of the September 2013 rating decision, the evidence of record included the service treatment records, which show that in January 2002 the Veteran reported difficulty coping. It was noted that he had a good support structure and he said he felt okay. He was described as stable, and the treating physician felt that the Veteran could benefit from a behavioral health consultation. The service treatment records do not show that the behavioral health consultation occurred. In February 2003 the Veteran was treated after breaking down in tears on post. He reported that his wife had cancer and he was upset about being away from her. The diagnosis was a brief depressive reaction. At follow up treatment it was noted that the Veteran had depressive symptoms and feelings of guilt, and a diagnosis was deferred. There was slight improvement. The post-service treatment records show that at November 2009 VA treatment the Veteran was diagnosed with generalized anxiety disorder. He reported feeling anxious while in the military and had a history of panic attacks. There was not a concurrent diagnosis of PTSD at that time. The Veteran had a mental health examination in September 2012 at which he was diagnosed with PTSD. His symptoms at the September 2012 examination included anxiety but did not include depressed mood. Problem lists from VA treatment beginning in June 2013 include major depressive disorder, depressive disorder NOS, and anxiety. At a September 2013 VA examination for PTSD the Veteran was also diagnosed with major depressive disorder. It was noted that major depressive disorder is a separate diagnosis from PTSD and was primarily related to the reaction to social, occupational, physical, and financial stressors. Anxiety was also noted as a symptom. September 2013 VA treatment records show increased depression with suicidal ideation. The additional evidence added to the record since the September 2013 rating decision includes January 2012 private treatment records at which the Veteran was noted to have anxiety, for which he was prescribed Xanax. The Veteran had a psychiatric examination in August 2012 as part of a Social Security claim. At that time his chief complaints were anxiety, depression, and PTSD. He said that he had depression for his whole life, and he also discussed an incident in military service when he was shot at and his wife having cancer when he was stationed overseas during service. The Veteran had an examination arranged through VA in August 2015 at which he was diagnosed with PTSD, alcohol use disorder, and major depressive disorder. The symptoms attributable to major depressive disorder were periods of major depression characterized by negative moods, lack of motivation to engage in activities of daily living, and suicidal ideation. The examiner also wrote that it was not possible to differentiate which portion of the indicated level of occupational and social impairment was attributable to each diagnosis. In November 2015 the Veteran had a private psychiatric examination at which he was diagnosed with major depression, severe, and panic disorder. No opinions on etiology or the extent to which the symptoms and level of occupational and social impairment were distinct from the service-connected PTSD were provided. While the additional evidence added to the record since the September 2013 rating decision is new, it is not material because it does not tend to show major depressive disorder and an anxiety disorder that are distinct from PTSD and are related to service or to a service-connected disability. The anxiety and depression symptomatology have been considered in the assigned 70 percent rating for PTSD. The August 2015 examiner wrote that the anxiety appeared to be “reasonably subsumed under the PTSD diagnosis.” Therefore, the evidence does not relate to an unestablished fact necessary to substantiate the claims. The claims are therefore not reopened. 38 C.F.R. § 3.156(b). 8. Whether new and material evidence has been received to reopen the claim of service connection for a low back disability Service connection for low back pain was denied in an April 2009 rating decision. The Veteran did not appeal the April 2009 rating decision, and new and material evidence was not received during the appeals period. Therefore, the April 2009 rating decision became final. See 38 C.F.R. § 3.156(b). At the time of the April 2009 rating decision, the evidence of record included the service treatment records, which included health history questions completed in January 2002 reflecting a report of back pain. There are no other complaints of back pain in the service treatment records, and there was no treatment or diagnoses related to the back during service. At a March 2009 examination, the lumbosacral spine had a full range of motion. There was normal lordotic curvature and no tenderness to palpation or spasm of the paraspinous muscles. The examiner did not make a diagnosis related to the low back. The additional evidence added to the record since the April 2009 rating decision includes private treatment records that include December 2011 thoracic and lumbar MRIs showing congenital and degenerative changes. The Veteran received a nerve root block injection at L5-S1 in February 2012. There were complaints of low back pain at March 2012 private treatment. The Veteran reported chronic back pain at May 2012 VA treatment. At January 2013 primary care treatment, the Veteran reported chronic back pain that was helped with gabapentin but was still present. The Veteran testified at the June 2020 hearing that he had a herniated disc at L5 during service and back pain. However, he did not have time to complain. He worked 16 hours a day, wore 35 to 40 pounds of gear, and also had to carry bags, which brought the total weight he carried on his body to 75 to 80 pounds. His back problem intensified after a 2010 accident that occurred while working as a correctional officer. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened. See Shade, 24 Vet. App. at 117. Specifically, the new evidence suggests that the Veteran has a back disability that could be related to his carrying heavy gear during service. Therefore, the additional evidence is both new and material, and the claim for service connection for a low back disability is reopened. 9. Entitlement to service connection for hepatitis The service treatment records do not show any complaints, treatment, or diagnoses related to hepatitis. VA treatment records show that an antibody titer was positive for hepatitis B in October 2014. The Veteran wrote in June 2015 that his liver function had been elevated on testing for years. The Veteran had a liver condition, including hepatis, examination in August 2015. Testing showed an elevated level in the ALT result of the hepatic function panel. The liver function was otherwise normal. The Veteran reported that he was diagnosed with hepatitis B the previous year and that current symptoms included a high bilirubin level. There was intermittent right upper quadrant pain, daily abdominal pain, and had been an incapacitating episode of less than a week in the past 12 months. The examiner noted that an October 2013 CT scan showed abdominal pain of unknown etiology with no acute findings. Overall, the examiner opined that there were no abnormalities to suggest liver damage and no diagnosis of a liver condition. The Veteran is competent to report that he was diagnosed with hepatitis B. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. However, this statement is simply not supported by the totality of the record, given the lack of a diagnosis in the extensive treatment reports that have been associated with the claims file. While there was a test result from August 2015 showing an elevated liver level, there was not a diagnosis of hepatitis B. There is no showing that Veteran has been diagnosed with hepatitis since he submitted his claim. Furthermore, the record does not show that there has been any functional limitation related to the elevated liver function test. The term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (2018). In summary, the evidence weighs against a finding of hepatitis during the claims period or functional impairment related to it. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). Therefore, the claim for service connection must be denied. 10. Entitlement to service connection for agoraphobia 11. Entitlement to service connection for sleep disturbance The service treatment records do not show any complaints, treatment, or diagnoses related to agoraphobia. The Veteran did not report any relevant fears at the August 2012 Social Security examination. A problem list from February 2014 VA treatment includes panic disorder without agoraphobia. The August 2015 examiner opined that an independent diagnosis of agoraphobia was not warranted because it emerged within the context of PTSD. Therefore, any agoraphobia symptoms are already considered within the assigned rating for PTSD. Regarding a sleep disturbance, the service treatment records show that when the Veteran reported depressive symptoms in February 2003, he also reported having insomnia for two weeks. The treating provider felt that the insomnia was likely related to the Veteran’s adjustment reaction. At the August 2012 Social Security psychiatric examination, the Veteran reported nightly insomnia and repetitive nightmares. At August 2011 VA mental health treatment, it was noted that the Veteran had difficulty sleeping. The Veteran reported at the September 2013 PTSD examination that his hypervigilance prevented him from falling asleep. At January 2014 VA treatment the Veteran said he felt overly sedated during daytime hours due to Lorazepam and that he was often sleeping 12 to 14 hours in a 24 hour period. The June 2018 Gulf War examiner opined that the Veteran’s sleep disturbances were related to PTSD. The record does not reflect a diagnosis of agoraphobia independent of PTSD or a sleep disturbance independent of PTSD or obstructive sleep apnea during the claims period. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). Therefore, the claims for service connection for agoraphobia and a sleep disturbance must be denied. Effective Date 12. Entitlement to an earlier effective date than July 29, 2014 for the grant of service connection for erectile dysfunction 13. Entitlement to an earlier effective date than July 29, 2014 for the grant of special monthly compensation based on loss of use of a creative disorder The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought by the claimant. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In addition, a communication received from a service organization, an attorney, or an agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. The Veteran is seeking earlier effective dates based on his erectile dysfunction being due to the service-connected PTSD. The effective date for the grant of service connection for PTSD is May 20, 2010. At May 2010 VA treatment it was noted that the Veteran had sexual dysfunction related to citalopram. August 2010 VA treatment records indicate that the Veteran had sexual dysfunction with an increase in his Zoloft prescription. The Veteran reported decreased libido and erectile dysfunction at June 2013 VA treatment. He complained of decreased libido at a September 2013 examination. The Veteran filed a claim for service connection for erectile dysfunction on July 29, 2014. Service connection was granted as of that date. He is seeking an effective date that coincides with the effective date for the grant of service connection for PTSD, which is May 20, 2010. A May 2014 rating decision increased the rating for PTSD to 70 percent. The Veteran did not appeal this decision and it became final. There was not a pending claim for an increased rating for PTSD at the time that the Veteran filed the claim for service connection for erectile dysfunction, to include any correspondence that could be considered an informal claim under then-applicable 38 C.F.R. § 3.155. Therefore, even if the record shows that erectile dysfunction is related to PTSD, there is no basis to grant an earlier effective date for the award of service connection. There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). Furthermore, an earlier effective date than July 29, 2014 cannot be assigned for the grant of special monthly compensation based on loss of use of a creative organ since there is no basis to grant an earlier effective date for service connection for erectile dysfunction. See id. Therefore, the claims for earlier effective dates must unfortunately be denied. 1151 Eligibility 14. Entitlement to compensation under 38 U.S.C. § 1151 for kidney disease 15. Entitlement to compensation under 38 U.S.C. § 1151 for an ear disability The Veteran is seeking compensation under 38 U.S.C. § 1151 for kidney disease and an ear disability. When a claimant incurs additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if that additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358(a). A veteran may be awarded compensation for an additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). A claimant may succeed on a § 1151 (VA negligence) claim on the basis that VA made a negligent referral to a private provider only if the additional disability that was proximately caused by the private provider was an event not reasonably foreseeable. Ollis v. Shulkin, 857 F.3d 1338, 1346 (2017); see 38 U.S.C. § 1151(a)(1)(B). The Veteran has not identified, and the record does not otherwise reveal, any incident of VA negligence related to kidney disease or an ear disorder, and the record does not show any such incident. Therefore, the claims for compensation under the provisions of 38 U.S.C. § 1151 are denied. Special Monthly Compensation 16. Entitlement to special monthly compensation for the Veteran's spouse based on the need for regular aid and attendance Under 38 C.F.R. § 3.351(a)(2), special monthly compensation is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance. 38 U.S.C. §§ 1114, 1115. The need for aid and attendance means helplessness as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). In this regard, the Veteran's spouse will be considered in need of regular aid and attendance if she (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). 38 C.F.R. § 3.351(c). In March 2015 a VA caregiver support program coordinator spoke to the Veteran’s spouse in November 2015. The spouse was acting as a caregiver for the Veteran. Testimony from the June 2020 Board hearing indicates that she continues to act as a caregiver for the Veteran, assisting him with managing medication and other activities of daily living. Nothing in the record indicates that the Veteran’s spouse is blind, a patient in a nursing home, or needs the regular aid and attendance of another. Therefore, the claim is denied. See 38 C.F.R. § 3.351(c). REASONS FOR REMAND VA treatment records to May 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from May 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for osteoarthritis is remanded. The Veteran testified at the June 2020 hearing that he has knee and hand problems. He explained that while deployed during service he had to carry his gear and weapons up two-story towers. He had pain but did not complain and took over the counter medication. The pain had worsened and he started treatment for it in 2007. Furthermore, VA treatment records show a diagnosis of osteoarthritis. Therefore, the Veteran should be scheduled for an examination before the claim is decided on the merits. 2. Entitlement to service connection for a low back disability is remanded. As discussed above, the Veteran testified at the June 2020 hearing that he had a herniated disc at L5 during service and back pain. However, he did not have time to complain. He worked 16 hours a day, wore 35 to 40 pounds of gear, and also had bags to carry, which brought the total weight he carried on his body to 75 to 80 pounds. His back problem intensified after a 2010 accident that occurred while working as a correctional officer. Given the Veteran’s credible reports of back pain and carrying heavy gear during service, he should be scheduled for a VA examination before the claim is decided on the merits. 3. Entitlement to service connection for hearing loss is remanded. The Veteran testified at the June 2020 hearing that his hearing loss had gotten worse since the last VA examination in 2015. The Veteran must be scheduled for a new examination before the claim can be decided on the merits to assess whether he currently has hearing loss in accordance with 38 C.F.R. § 3.385. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history). In addition, an opinion should be obtained regarding whether any diagnosed hearing loss is related to service. 4. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran was diagnosed with sleep apnea following a March 2018 sleep study. The June 2018 Gulf War examiner opined that the Veteran’s sleep apnea is not related to exposure to airborne hazards and noted that it is a mechanical problem at the level of the throat when the upper airway relaxes during sleep and closes off, diminishing entry of air into the lungs. The Veteran’s sleep apnea was due his back and ankle, according to the examiner. The Veteran’s wife wrote in May 2020 that he snored loudly, and she could sometimes hear him stop breathing for several seconds during the night. Given the opinion of the June 2018 examiner, the resolution of the claim for service connection for a low back disability may impact whether the Veteran is entitled to service connection for sleep apnea. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s claim for service connection for obstructive sleep apnea would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). 5. Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status is remanded. 6. Entitlement to a TDIU is remanded. 7. Entitlement to specially adapted housing is remanded. 8. Entitlement to a special home adaption grant is remanded. The resolution of the claims for service connection for osteoarthritis, a low back disability, hearing loss, and sleep apnea may impact whether the Veteran satisfies the requirements for a special monthly compensation based on the need for regular aid and attendance or housebound status, TDIU, specially adapted housing, or a special home adaption grant. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s special monthly compensation, TDIU, specially adapted housing, and special home adaption grant claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from May 2020 to the present. 2. Thereafter, schedule the Veteran for a VA examination to assess the nature and etiology of his osteoarthritis and low back and right ankle disabilities. The claims folder should be made available to the examiner for review in conjunction with the examination. The examiner should state whether the Veteran’s osteoarthritis, other than that affecting the low back or right ankle, at least as likely as not (a 50 percent or higher degree of probability) had its onset during active service, within a year of service, or is otherwise related to the Veteran’s period of active service. The examiner should state whether the Veteran’s low back disability and/or right ankle disability is at least as likely as not (a 50 percent or higher degree of probability) had an onset during active service, within a year of service, or is otherwise related to the Veteran’s period of active service. The examiner must provide reasons for all opinions offered. The examiner is advised that the Veteran is competent to report his symptoms and history and that his reports of pain and carrying heavy gear during service must be considered credible in formulating the requested opinion. 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his claimed bilateral hearing loss. The claims folder should be made available to the examiner for review in conjunction with the examination. The examiner should state whether the Veteran has hearing loss per § 3.385 and offer an opinion as to whether any hearing loss at least as likely as not (a 50 percent or higher degree of probability) had its onset during active service, within a year of service, or is otherwise related to the Veteran’s period of active service, including noise exposure. (Continued on the next page)   The examiner must provide reasons for all opinions offered. The examiner is advised that the Veteran is competent to report his symptoms and history and that his reports must be considered in formulating the requested opinions. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.