Citation Nr: 21040857 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-19 953 DATE: July 7, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus, as secondary to service-connected bilateral hearing loss, is granted. Service connection for erectile dysfunction, as secondary to service-connected hypertension, is granted. A rating in excess of 40 percent for residuals of prostate cancer is denied. FINDINGS OF FACT 1. The evidence is in at least relative equipoise as to whether bilateral hearing loss is related to active service. 2. The evidence is in at least relative equipoise as to whether tinnitus is secondary to bilateral hearing loss. 3. The evidence is at least relative equipoise as to whether erectile dysfunction is secondary to service-connected hypertension. 4. The medical evidence demonstrates that the Veteran's service-connected residuals of prostate cancer has at worst been characterized by symptoms of voiding dysfunction necessitating the wearing of absorbent materials which must be changed two to four times per day. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.385. 2. The criteria for secondary service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for secondary service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for a rating in excess of 40 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.115a, DCs 7527, 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served from August 1965 to May 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision. These matters were remanded in a February 2020 Board decision for further development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus Legal Criteria Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (a). To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310 (a) for claims for service connection on a secondary basis). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the puretone threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Factual Background & Analysis Initially, the August 2020 VA audiological examination report reflects puretone thresholds of 40 decibels or greater at one or more of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz. The Veteran therefore has impaired hearing for VA compensation purposes. 38 C.F.R. § 3.385. Of note is an August 2018 audiology progress note from Amar Medical Associates in which the Veteran was diagnosed with bilateral hearing loss. The progress note indicates the Veteran's subjective report that this disability has progressed over the past 40 years. The examiner noted that the Veteran was exposed to noise from aircraft, boats, gunfire, and engine noise during service without the aid of hearing protection. Ultimately, the examiner's impression was that the Veteran's bilateral hearing loss is consistent with his noise exposure during service. In addition, the August 2020 VA negative nexus opinion regarding whether the Veteran's bilateral hearing loss is causally related to noise exposure during service is entitled to diminished probative weight. It is well settled that the absence of a hearing disability in service is not fatal to a claim of entitlement to service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, the proper inquiry is whether the Veteran's current hearing loss is related to the Veteran's conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Moreover, a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, supra. In addition to clear conclusions with supporting data, a medical opinion must contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 201 (2008). As the August 2020 VA examiner relied, without elaboration, on the absence of hearing loss during service, the opinion cannot be afforded significant probative value. Considering the foregoing, the probative medical evidence is in equipoise as to whether Veteran's bilateral hearing loss disability is causally related to his noise exposure during military service. The elements of service connection have been met and the claim is granted. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, the August 2018 private audiology progress note also reflects that the Veteran has a diagnosis of bilateral tinnitus that the treating physician associated with his bilateral hearing loss. As discussed, these disabilities were noted to be consistent with a history of noise exposure. This evidence substantiates that the Veteran's bilateral tinnitus is proximately due to his now service-connected bilateral hearing loss. Crucially, there is no medical evidence, including VA medical opinions, which tend to contradict these findings. Accordingly, the elements for secondary service connection for bilateral tinnitus have been met and the claim is granted on that basis. 38 C.F.R. § 3.310(a). 3. Service connection for erectile dysfunction The Veteran initially claimed for secondary service connection for erectile dysfunction as a residual of his service-connected prostate cancer residuals. Notably, during the appeal period the Veteran was granted service connection for hypertension. A May 2019 VA medical opinion states that it is less likely than not that the Veteran's erectile dysfunction is causally related to his service-connected prostate disability. The Veteran was noted to be at increased risk for erectile dysfunction due to his advanced age, obesity, diabetes, and hypertension and that there was no way to attribute erectile dysfunction to a prostate disability with these factors present. An August 2020 VA medical opinion states that it is less likely than not that erectile dysfunction is incurred in or caused by military service. The examiner commented on medical evidence in the claims file from Formula Medical Group dated April 2018 to 2019 noting that the Veteran has erectile dysfunction due to "arterial insufficiency" and "essential hypertension." The examiner noted that the risk of erectile dysfunction is increased due to multiple pathologies applicable to the Veteran including medication to treat hypertension (metoprolol), hypertension, and diabetes. Ultimately, two separate VA medical examiners posited a causal relationship between the Veteran's erectile dysfunction and his hypertension and/or hypertension medication. Moreover, there are private medical records from Formula Medical Group dated April 2018 to 2019 noting that the Veteran has erectile dysfunction due to "arterial insufficiency" and "essential hypertension." Affording all reasonable doubt to the Veteran, the Board finds that the evidence is certainly in relative equipoise as to whether the Veteran's erectile dysfunction is proximately due to his service-connected hypertension. The elements of secondary service connection are met, and the claim is granted on that basis. 38 C.F.R. § 3.310(a). 4. A higher initial rating for residuals of prostate cancer Legal Criteria Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptoms, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted and, if necessary, reconciled into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. If there has been no local reoccurrence or metastasis following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, prostate cancer is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, including note. In addition, pursuant to the provisions of DC 7527, postoperative residuals of prostate gland injuries are evaluated under either voiding dysfunction, renal dysfunction, or urinary tract infection, whichever is predominant. DC 7527. Under 38 C.F.R. § 4.115a, any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. With respect to urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for 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 is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. With respect to urinary frequency, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id. With respect to obstructed voiding, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for 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 non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id. Regarding renal dysfunction, a noncompensable rating is assigned for albumin and casts with history of acute nephritis; or, hypertension non-compensable under DC 7101. A 30 percent rating is assigned for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg; or, creatinine 4 to 8mg; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg; or, creatinine more than 8mg; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. Under DC 7528, a 100 percent disability rating may be assigned for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. Id. Factual Background & Analysis The Veteran has been assigned an initial 40 percent disability rating for service-connected residuals of prostate cancer and claims that a higher rating is warranted. The Veteran communicated in an October 2018 statement that he suffers from incontinence. A December 2018 VA examination report documented a diagnosis of urinary incontinence and symptoms of voiding dysfunction not necessitating the wearing of absorbent materials were noted. No symptoms of urinary frequency, obstructed voiding, or renal dysfunction were indicated. The Veteran conveyed in the January 2019 NOD that he wears pads/diapers daily that he changes at least twice a day. His nighttime voiding intervals were noted to be at least three times per night and every two hours during the day. An August 2020 VA examination report reflects a reported history of difficulty urinating with frequent urination occurring three to five times a night. The Veteran reported current symptoms of urinating three to five times a night and frequent leaking. Voiding dysfunction was noted to require the wearing of absorbent material which must be changed less than two times per day. Voiding dysfunction was also noted to cause urinary frequency with daytime voiding intervals between one and two hours. No symptoms of obstructive voiding or renal dysfunction were indicated. After reviewing the evidence of record the Board finds that an initial rating in excess of 40 percent for residuals of prostate cancer is not warranted. A rating in excess of 40 percent under the applicable rating criteria is only warranted for certain symptoms of voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115a. A higher 60 percent rating for voiding dysfunction is warranted when the evidence demonstrates the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The medical and lay evidence, including the Veteran's own subjective reports, does not document that his voiding dysfunction requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Moreover, there is no lay or medical evidence documenting or alleging that the Veteran has had any renal dysfunction resulting from his disability during the appeal period. Consequently, a higher rating under the applicable rating criteria for symptoms of renal dysfunction is not warranted. In sum, the preponderance of the evidence weighs against finding that a rating in excess of 40 percent for residuals of prostate cancer is warranted. The claim therefore must be denied. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.