Citation Nr: 21029864 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-44 208 DATE: May 17, 2021 ORDER A rating in excess of 10 percent for urethritis is denied. For the period prior to February 1, 2019, a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for erectile dysfunction, included as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran's urethritis does not currently manifest in symptoms of voiding dysfunction, to include urine leakage, frequency, or obstructed voiding. 2. The medical evidence shows that the Veteran's non service-connected benign prostatic hypertrophy (BPH) is not related to his service-connected urethritis. 3. Prior to February 1, 2019, the Veteran was gainfully employed, and such employment was not sheltered. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for urethritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.951(b), 4.1, 4.3, 4.7, 4.115, 4.115a, 4.115b, Diagnostic Codes (DCs) 7599-7518 (2020). 2. Prior to February 1, 2019, the criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.1, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1969 to April 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). In April 2019, the Board remanded this matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to a rating in excess of 10 percent for urethritis. The Veteran is current in receipt of a 10 percent rating for urethritis under 38 C.F.R. § 4.115b, DC 7599-7518, and he contends that a higher rating is warranted. Of note, the current 10 percent rating has been in effect since April 1972, and is therefore protected under the law preserving disability ratings in effect for more than 20 years. 38 C.F.R. § 3.951(b). DC 7518 provides that manifestations of the disability should be rated as voiding dysfunction. Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Furthermore, where diagnostic codes refer the decisionmaker to specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Id. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating requires the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating requires the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Under urinary frequency conditions, a 40 percent disability rating requires a daytime voiding interval of less than one hour, or awakening to void five or more times per night. A 20 percent disability rating requires a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 10 percent disability rating requires a daytime voiding interval between two and three hours, or awakening to void two times per night. 38 C.F.R. § 4.115a. Under obstructed voiding conditions, a 30 percent disability rating requires urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A noncompensable disability rating requires obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. 38 C.F.R. § 4.115a. Based on a review of the evidence, both lay and medical, the Board finds that the weight of the evidence reflects that the Veteran does not have urine leakage, urinary frequency, or obstructed voiding that is related to his service-connected urethritis. While the Veteran clearly has symptoms of urine leakage, urinary frequency, and obstructed voiding, the October 2016 and August 2019 VA examiners both opined that these symptoms are not related to, or caused by, the service-connected urethritis. To the contrary, the October 2016 and August 2019 VA examiners both attributed these symptoms to the Veteran's non-service connected BPH. The VA examiners explained that the Veteran does not have a current diagnosis of urethritis or a urethral stricture, and that his diagnosed urethritis during service and for a period thereafter has since resolved. The VA examiners further explained that the Veteran has a long-standing diagnosis and symptoms of BPH which is not related to his service-connected urethritis. Furthermore, the August 2019 VA examiner explained that urethritis is an infection of the urethra, which is an acute condition causing urethral discharge, burning, urination, and frequency of urination, and usually resolves after a course of antibiotics. The August 2019 VA examiner also noted that VA treatment records from 1995 and 1997 do not indicate any urinary symptoms, and a March 2000 VA treatment record indicates that the Veteran complained of "problems of sexual dysfunction since 10-15 years," but not of urinary symptoms. The Veteran first complained of urinary symptoms to a VA doctor in November 2000 and was diagnosed with prostatitis. The August 2019 VA examiner concluded that since the Veteran's urethritis condition had resolved and had no causal relationship with the prostate condition that was diagnosed in 2001, the current voiding symptoms are from a separate disease of the prostate and not from his service-connected urethritis which had resolved. The Board finds the opinions from the October 2016 and August 2019 VA examiners to be highly probative, as they are based on examination of the Veteran, review of the Veteran's medical history, and supported by detailed rationales. The Board acknowledges the Veteran's contentions that his current symptoms of voiding dysfunction are related to his service-connected urethritis. However, he is not competent to diagnose the etiology of his symptoms of voiding dysfunction, due to the medical complexity of the matter. See Jandreau, 492 F.3d 1372, 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). For these reasons, the weight of the most probative evidence of record supports a finding that the Veteran does not have any current symptoms of voiding dysfunction that are related to his service-connected urethritis. Therefore, a rating in excess of 10 percent for urethritis is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU for the period prior to February 1, 2019. It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. Here, in pertinent part, the Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD) with substance abuse, urethritis, postoperative residuals of excision of a cyst behind the left ear and scrotum; hepatitis C and parenchymal liver disease, fibromata of nose, a right cheek scar, and a left knee scar. His combined disability rating was 50 percent from July 30, 2009 and 80 percent from August 31, 2018. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). There is no regulatory definition of "substantially gainful employment." 38 C.F.R. § 4.16(a) provides guidance in that it states: "Marginal employment shall not be considered gainful employment." It also says definitively that marginal employment exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. One example given is employment in a protected environment like a family business or a sheltered workshop. 38 C.F.R. § 4.16(a). VA must consider the nature of employment. Id. Notably, in Ray v. Wilkie, the Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In this case, the most probative evidence of record reflects that the Veteran was employed prior to February 1, 2019, and there is no indication that such employment was sheltered or not gainful. See April 2019 VA Form 2108940, Veteran's Application for Increased Compensation Based on Unemployability; May 2019 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability. Thus, the Veteran was gainfully employed prior to February 1, 2019, and is not entitled to a TDIU prior to that date. Therefore, the claim for a TDIU for the period prior to February 1, 2019 must be denied. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected disabilities, is remanded. The Veteran has been diagnosed with erectile dysfunction. See December 2007 VA treatment record and February 2016 private treatment record. In an October 2020 statement, the Veteran alleged that his current erectile dysfunction is related to his service-connected PTSD, to include the medications prescribed to treat his posttraumatic stress disorder (PTSD). To date, VA has not obtained a competent medical examination and opinion addressing this claim. Given the evidence of a current disability and the Veteran's lay statements, and the fact that service connection is currently in effect for PTSD, a VA examination is necessary prior to further adjudication. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that the Veteran has been diagnosed with coronary artery disease (CAD), which may cause or aggravate erectile dysfunction. The Veteran's DD-214 indicates that he served in the Republic of Vietnam during the Vietnam era; therefore, he is presumed to have been exposed to herbicide agents therein. VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents, including CAD. However, it does not appear from the record that the Veteran has ever applied for service connection for CAD. As the current claim for service connection for erectile dysfunction may relate to the Veteran's CAD, the Veteran is advised to consider filing a claim for service connection for CAD. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his current erectile dysfunction. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. After examination of the Veteran and review of the claims file, the examiner should provide the following opinions: a. Whether it is at least as likely as not (50 percent probability or higher) that the Veteran's current erectile dysfunction is related to or caused by his service-connected disabilities, including PTSD with substance abuse, urethritis, or hepatitis C, to include any medication prescribed to treat any of the service-connected disabilities, particularly PTSD. b. Whether it is at least as likely as not (50 percent probability or higher) that the Veteran's current erectile dysfunction is aggravated by his service-connected disabilities, including PTSD with substance abuse, urethritis, or hepatitis C, to include any medication prescribed to treat any of the service-connected disabilities, particularly PTSD. A complete rationale should be provided for the opinions rendered. 2. Then, readjudicate the remaining issue on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.