Citation Nr: 21032898 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-18 409 DATE: May 28, 2021 ORDER Service connection for erectile dysfunction, to include as secondary to herbicide exposure, is denied. Service connection for bilateral hearing loss is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Service connection for psoriasis sores on the legs, to include as secondary to herbicide exposure, is denied. Service connection for colitis, to include as secondary to herbicide exposure, is denied. Service connection for a respiratory disability (claimed as breathing problems), to include as secondary to herbicide exposure, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has an erectile dysfunction disability that was incurred in or aggravated by active service, including as a result of exposure to herbicides/chemical exposure. 2. It is at least as likely as not that the Veteran's bilateral hearing loss is etiologically related to his active duty service. 3. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for erectile dysfunction to include as secondary to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. 3. The criteria for a grant of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.1, 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1970 to November 1971, including service in the Republic of Vietnam from August 1970 to August 1971. His decorations and awards include the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his April 2016 VA Form 9, the Veteran requested a video conference hearing before a Veterans Law Judge. In September 2019 correspondence, the Veteran's attorney withdrew the request for a hearing. His request for a hearing before the Board is accordingly deemed to be effectively withdrawn. See 38 C.F.R. § 20.702(e). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 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. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 1. Service connection for erectile dysfunction, to include as secondary to exposure to herbicides. The Veteran is requesting service connection for erectile dysfunction based on his presumed exposure to herbicide agents while serving in the Republic of Vietnam. The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses related to erectile dysfunction, including his November 1971 service separation report of medical examination. A review of the claims file does not reflect that the Veteran had symptoms of erectile dysfunction that began during service or manifested within one year of separation from service, nor does the Veteran claim that erectile dysfunction developed during or within one year of service. The Veteran states that his medical problems began in his late twenties or early thirties. See September 2011 Veteran statement; see also April 2008 VA treatment record (noting erectile dysfunction since 1987, at approximately 37 years of age). A review of the Veteran's claim's file shows that he was first diagnosed with erectile dysfunction in June 2004. Based upon the foregoing evidence, service connection for erectile dysfunction on the basis that such became manifest in service and persisted is not warranted. It is also not shown that the Veteran has a erectile dysfunction disability that became manifest within one year of his separation from service that would also qualify as a chronic disease under 38 U.S.C. § 1112, such that service connection on that basis would be warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for erectile dysfunction on a direct basis. The Veteran also seeks service connection for erectile dysfunction as secondary to his presumed herbicide exposure in Vietnam. Erectile dysfunction is not listed as a disability for which the presumptive provisions for herbicide exposure are applicable. 38 U.S.C. § 1116. Nevertheless, a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on herbicide exposure is not precluded from establishing service connection for such disability as due to herbicide exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042(Fed. Cir. 1994). In this case, there is no competent evidence in the record of a nexus between the Veteran's erectile dysfunction disability and his conceded herbicide exposure. The Veteran's own statements relating his erectile dysfunction disability to herbicide exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation in this matter; whether a disease/condition is related to herbicide exposure is a complex medical question and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the United States Court of Appeals for Veterans Claims (Court)). As there is no competent evidence, lay or otherwise, showing that the Veteran has a erectile dysfunction condition aggravated by service or evidence showing an in-service event or injury that could cause such disability, the preponderance of the evidence is against the Veteran's claim and there is no doubt to be resolved. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for an erectile dysfunction disability as due to herbicide exposure. 2. Entitlement to service connection for bilateral hearing loss. The Veteran claims entitlement to service connection for bilateral ear hearing loss. The Veteran presented a statement in May 2012 explaining that he was exposed to hazardous noise from tank noise, engines, and M60 guns while on active duty without adequate protection. See May 2012 Veteran statement. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. However, the absence of in-service evidence of hearing loss is not fatal to a claim of service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. Here, an August 2012 VA audiological evaluation report reflects a current diagnosis of bilateral hearing loss. 38 C.F.R. § 3.385. As such, the first element of service connection is satisfied. As stated above, in-service injury is conceded based on the Veteran's credible reports that he was exposed to acoustic trauma during combat. Notably, the Veteran has already established service connection for tinnitus, and the Board concedes in-service acoustic trauma as consistent with the circumstances of his service and his duties therein. 38 U.S.C. § 1154(a). Thus, an in-service injury is shown. Regarding the final service connection element, medical nexus, evidence includes medical evidence against the Veteran's claim. Specifically, an August 2012 VA audiological examiner opined that the Veteran's bilateral hearing loss was not caused by or a result of military service, explaining that the Veteran's hearing was normal on service separation examination. The Board finds the August 2012 VA opinion to be inadequate as the examiner failed to adequately discuss the Veteran's credible reports of in-service noise exposure. As noted above, the absence of in-service evidence of hearing loss is not fatal to a claim of service connection. Ledford, 3 Vet. App. at 89. Accordingly, the opinion is inadequate, and the Board affords it little probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given that the Veteran has already been awarded tinnitus due to in-service acoustic trauma, as well as decorated combat service, resolving all reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection is established. Thus, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to TDIU. The Veteran asserts that he is unable to maintain substantially gainful employment due to his service-connected disabilities. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran has established service connection for ischemic heart disease, tinnitus and based on the above, bilateral hearing loss. The Veteran meets the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period. The Veteran's TDIU application indicates his service-connected ischemic heart disease has caused him to be unemployable. See August 2014 VA Form 21-8940. The Veteran reported that he has not worked since November 2012. Id. The record indicates that the Veteran's education includes one year of high school. The evidence of record shows he has employment experience working as a material handler, track worker for a railroad, laborer on road construction driving a van for railroad, and as upholsterer from 1976 through 2012. See July 2014 vocational evaluation report. The pertinent evidence of record includes a July 2014 vocational evaluation report wherein it was noted the Veteran had a marginal education, no skills which would transfer to light or sedentary employment, and that he had never worked as a supervisor or had any clerical skills. It was opined he was only suited for unskilled entry-level sedentary employment, and that it was not vocationally possible for the Veteran to sustain any substantial, gainful occupation, even in a sedentary level, in the competitive workforce. In a March 2016 VA heart conditions examination, it was opined the Veteran could perform sedentary work without any problem. It was also opined that the Veteran should not do any more physical work due to his service-connected ischemic heart disease. As stated above, the Veteran meets the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). His service-connected disabilities limit his ability to perform physical tasks, and his marginal education does not make him a candidate for sedentary work. Moreover, his past employment experience does not include sedentary employment. Thus, to the extent the March 2016 VA examiner indicated the Veteran could perform sedentary work without any problem due to his service-connected ischemic heart disease, the Board finds this opinion of little probative value in light of the Veteran's past employment experience. In addition, due to the Veteran's service-connected bilateral hearing loss and tinnitus, he has reported difficulty hearing people speak to him. See August 2012 VA audiological evaluation. Based on the evidence of record, the Board finds that the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Entitlement to TDIU is warranted. REASONS FOR REMAND 4. Service connection for psoriasis sores on the legs is remanded. 5. Entitlement to service connection for colitis is remanded. 6. Entitlement to service connection for a respiratory disability is remanded. The Veteran contends that his psoriasis sores on the legs, colitis, and respiratory disability are related to service, to include conceded herbicide exposure in Vietnam. Regarding his psoriasis sores on the legs, the Veteran contends he has had such sores since his service in Vietnam. See April 2008 VA treatment record. As to his colitis, private treatment records reflect his complaint of chronic diarrhea since his service in Vietnam. See December 2014 private treatment record. As to his claim for a respiratory disability, his service treatment records reflect treatment for difficulty breathing. See, e.g., July 1970 service treatment report. The Veteran has not been afforded a VA examination regarding his claims for service connection for psorias sores on the legs and colitis, and the Board finds that the existing record triggers VA's duty to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Outstanding treatment records should also be secured on remand. The Board notes that the Veteran was afforded a VA examination regarding his claim for a respiratory disability in August 2012. Since the examination, the Veteran has been awarded service connection for ischemic heart disease. See September 2012 rating decision. The Veteran's attorney has since raised the theory that the Veteran's respiratory disability is secondary to his service-connected ischemic heart disease. See November 2019 statement. The Board finds that this matter must be remanded for another VA examination and opinion, to include whether his respiratory disability is secondary to his service-connected ischemic heart disease. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of colitis, psoriasis sores, and a respiratory disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of any current colitis and psoriasis on the. All necessary tests should be conducted. The VA examiner(s) is(are) requested to address the following: (a) Provide a diagnosis for colitis, psoriasis sores on the legs found. If no such disabilities are found, the examiner must indicate whether the Veteran's colitis or chronic diarrhea, and psoriasis sores, cause any functional impairment. (b) For any colitis or psoriasis sores on the legs/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran's active service, to include conceded herbicide exposure in Vietnam. The examiner should specifically consider the Veteran's report, as well as any supporting lay statements, of chronic diarrhea and psoriasis sores on his legs since his service in Vietnam in providing the requested opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Schedule for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of any current respiratory disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any respiratory disability found. If no such disability is diagnosed, the examiner must indicate whether the Veteran's reported respiratory symptomatology causes any functional impairment. (b) For any respiratory disability/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran's active service, to include conceded herbicide exposure in Vietnam. The examiner should acknowledge the Veteran's treatment for breathing difficulties during service. (c) Whether any respiratory disability/functional impairment diagnosed is proximately due to his service-connected ischemic heart disease; or (d) Whether any respiratory disability/functional impairment diagnosed has been aggravated by his service-connected ischemic heart disease. (Continued on the next page) A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that the service-connected ischemic heart disease be diagnosed or even service-connected at the time the respiratory disability/functional impairment is incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.