Citation Nr: 21040204 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-17 019 DATE: July 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a 20 percent disability rating, prior to October 14, 2014, for erectile dysfunction, is granted. REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to a compensable rating for a right ear hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran's service is consistent with noise exposure and he has experienced tinnitus symptoms since service. 2. Prior to October 14, 2014, the Veteran suffered from penis deformity with loss of erectile power. CONCLUSIONS OF LAW 1. Tinnitus was incurred or is otherwise related to service. 38 U.S.C. §§ 1110, 1141, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to a 20 percent rating, but no higher, prior to October 14, 2014, for erectile dysfunction were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1970 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. 1. Entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus because he has experienced symptoms of ringing in his ears since service and thereafter. See Board Hearing Transcript, p. 11. Specifically, he states that he was exposed to gunfire without the benefit of hearing protection. For the reasons explained below, the Board finds that entitlement to service connection is warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303(a) a Veteran must satisfy a three element test: (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 the so called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has a current disability - namely tinnitus. Next, there is evidence of an in-service injury. Although the Veteran's military occupational specialty was clerk typist, his DD-214 Form states that he had experience with M-14 guns. Accordingly, the Board accepts the Veteran's account of in-service acoustic trauma. Importantly, tinnitus is unlike hearing loss, in that it is capable of lay observation. Moreover, the Board credits the Veteran's statements that he has suffered from tinnitus since service. Although the Veteran did not report it on his Report of Medical History at separation, he testified that he did whatever it took to be released from service and since his tinnitus was not as bothersome at the time, he does not recall is he reported it. See Board Hearing Transcript, p.12. However, he reported that over the years, the ringing in his ears has increased. Therefore, his opinion as to nexus is both competent and credible. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable rating, prior to October 14, 2014, for erectile dysfunction The Veteran contends that he is entitled to a compensable rating for erectile dysfunction, prior to October 14, 2014, because he has suffered from penis deformity and loss of erectile power. See February 2014 NOD. For the reasons explained below, the Board finds that an increased rating is warranted. The Veteran's erectile dysfunction is rated under Diagnostic Code 7599-7522. There is no diagnostic code which addresses erectile dysfunction exclusively. The Veteran's erectile dysfunction is currently evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7522, which pertains to deformity of the penis with loss of erectile power. Diagnostic Code 7522 is deemed by the Board to be the most appropriate disability evaluation because it is the only diagnostic code that addresses loss of erectile power among its rating criteria. The Board can identify nothing in the evidence to suggest that an alternative diagnostic code would more nearly approximate the symptoms of the Veteran's penis deformity. Under Diagnostic Code 7522, a rating of 20 percent is warranted when there is deformity of the penis with loss of erectile power. Under Diagnostic Code 7522, 20 percent is the highest schedular evaluation allowed. See 38 C.F.R. § 4.115b. The Veteran was afforded a VA prostate cancer examination in December 2013 where the examiner noted diagnoses of prostate cancer, urinary incontinence and erectile dysfunction. An October 2014 VA urology consultation note indicates that the Veteran reported curvature of his penis since 2011 prostatectomy. A January 2015 Disability Benefits Questionnaire (DBQ) notes that the Veteran suffered from erectile dysfunction but had a normal penis and testes. However, the examiner also noted that the Veteran suffered from Peyronie's Disease (penis deformity). A June 2017 VA treatment note indicates that the Veteran suffers from a curvature of the penis as a consequence of his surgery for prostate cancer. Based on the foregoing, the Board finds that a 20 percent rating is warranted, prior to October 14, 2014. In that regard, the Board credits the Veteran's lay statements, VA urology note and the January 2015 DBQ which all indicate that the Veteran suffers from Peyronie's Disease and has most likely suffered from it since the filing of his claim in November 2012. The October 2014 VA urology note indicates that the Veteran reported suffering from a curvature of his penis since his 2011 prostatectomy. Although there was no formal diagnosis of Peyronie's Disease in the record, prior to the VA urology notes, the Board finds that the Veteran is competent to report a curvature of his penis as it is capable of lay observation. Further, the urology report indicates that the Veteran's wife corroborated that the Veteran has suffered from the curvature of the penis since the prostatectomy and noted that it made for painful intercourse. As noted above, a 20 percent rating is warranted for penis deformity and loss of erectile power. There is evidence that, prior to October 14, 2014, the Veteran suffered from both symptoms. As the Board has granted a 20 percent rating for Peyronie's disease, prior to October 14, 2014, the Veteran is in receipt of the maximum rating for this condition under DC 7522 for penile deformity with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522. Potential alternate diagnostic codes were considered but are not applicable, as the Veteran does not have any penile disability equivalent to removal of the penis or the glans; therefore, an evaluation under either 38 C.F.R. § 4.115b , DC 7520 or DC 7521 is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left ear hearing loss disability is remanded. The Veteran contends that he is entitled to a left ear hearing loss disability because he suffered acoustic trauma during service. See February 2014 NOD. He contends that his left and right ear are both service-related. Id. The Veteran was afforded a VA audiological examination in December 2013 where the examiner noted that the Veteran suffered from left ear sensorineural hearing loss. The examiner opined that it was less likely than not that the Veteran's left ear hearing loss disability was related to service because the Veteran's pre-induction examination showed mild hearing loss in the left ear. "Due to the claimant's occupation, the existing hearing loss could have been at least as likely as not aggravated by hazardous noise exposure while in service." As a left ear hearing loss disability was noted upon the Veteran's entry into active duty, the Veteran's claim of service connection for a left ear hearing loss disability is being considered based on a theory of aggravation of a preexisting disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that "if a preexisting disorder is noted upon entry into service, the [V]eteran cannot bring a claim for service connection for that disorder, but the [V]eteran may bring a claim for service-connected aggravation of that disorder"). The burden lies with the claimant to establish that the evidence is at least in equipoise as to whether his condition increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a); Wagner, supra. If the Veteran meets this burden, then the burden shifts to VA to show lack of aggravation by establishing that the increase in disability was due to the natural progress of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Wagner, supra. Based on the foregoing, the Board finds that a remand is necessary to obtain an addendum medical opinion which properly addresses the issue of whether the Veteran's preexisting left ear hearing loss disability underwent an increase in severity during service and if so, if the preexisting hearing loss disability was clearly and unmistakably not aggravated by service. 2. Entitlement to a compensable rating for a right ear hearing loss disability is remanded. The Veteran contends that he is entitled to a compensable rating for his right ear hearing loss disability. The Veteran was afforded a VA audiological examination in December 2013. However, in July 2016, at a VA audiology evaluation, he reported difficulty hearing in most situations and qualified for hearing aids for which he was not previously eligible. As there is evidence of worsening since the last VA examination, the Board finds that a remand is necessary to obtain a new VA examination to determine the Veteran's current level of severity. See Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). The matters are REMANDED for the following action: 1. Obtain a medical opinion from the December 2013 VA examiner regarding the etiology of the Veteran's left ear hearing loss disability (or if that examiner is not available, from a suitable medical professional). The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. The clinician is requested to offer an opinion as the following: (a) Whether the Veteran's preexisting left ear hearing loss (noted on entry examination) increased in severity during his active duty service. (b) If it is determined that the preexisting left ear hearing disability as likely as not increased in severity during service, then whether it is clear and unmistakable (obvious, manifest, and undebatable) that the preexisting left ear hearing loss disability WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). Also, intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). A complete rationale, including citation to appropriate medical principle, is requested. 2. Then, schedule the Veteran for a VA audiological examination to assess the severity of his service-connected right ear hearing loss disability. All necessary testing, to include complete audiometry and speech recognition, must be accomplished. The examiner should fully describe the effects of the disability on occupational functioning and daily activities. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Baskerville, LaRita 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.