Citation Nr: 21042752 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-00 899 DATE: July 13, 2021 ORDER Entitlement to service connection for erectile dysfunction as secondary to service-connected disabilities is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent prior to December 1, 2014, and in excess of 30 percent as of December 1, 2014, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) prior to August 27, 2014, is denied. FINDINGS OF FACT 1. The Veteran's erectile dysfunction was aggravated beyond its natural progression by his service-connected coronary artery disease, diabetes mellitus, hypertension and PTSD. 2. The evidence of record does not reflect that the Veteran's bilateral hearing loss began during service or was otherwise related to service, to include conceded in-service noise exposure. 3. Prior to December 1, 2014, the Veteran's PTSD was not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. From December 1, 2014, the Veteran's PTSD was not manifested by occupational and social impairment with reduced reliability and productivity. 5. Prior to August 27, 2014, the Veteran was employed on a full-time basis. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a rating in excess of 10 percent prior to December 1, 2014, and in excess of 30 percent as of December 1, 2014, for PTSD have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. Prior to August 27, 2014, the criteria for a TDIU were not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from October 1965 to October 1968, with service in the Republic of Vietnam. The Veteran died in June 2017. The appellant is the Veteran's surviving spouse. In January 2018, she was substituted as the appellant in this appeal. In April 2019, the Board of Veterans' Appeals (Board) remanded the claims for further development. During that time, service connection for a gastrointestinal disability was granted in an April 2020 rating decision. As that decision represents a complete grant of benefits sought, that issue is no longer before the Board. In an April 2019 rating decision, a 100 percent rating was assigned for coronary artery disease and special monthly compensation (SMC) based on housebound criteria being met was granted, effective August 27, 2014. Thus, the claim for a TDIU from that date is rendered moot. However, the issue of a TDIU prior to August 27, 2014, remains on appeal. The Board finds that the remand directives have been substantially complied with (the Board directed that medical treatment records be obtained, which the RO attempted to retrieve, and VA opinions be obtained, which have been completed) and therefore will proceed with a decision on these claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection for certain diseases, as noted under 38C.F.R. §3.309, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 1. Entitlement to service connection for erectile dysfunction The Board finds that the evidence of record supports the grant of service connection for the Veteran's erectile dysfunction. The report of a June 2015 VA examination shows that the Veteran was diagnosed with erectile dysfunction. Moreover, there is evidence that the Veteran's erectile dysfunction was caused by or aggravated by his service-connected disabilities of coronary artery disease, diabetes mellitus, hypertension and PTSD. The law is clear; pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Although a February 2020 VA examiner noted that there is a lack of documentation in the medical records regarding the progression of the Veteran's erectile dysfunction, the examiner opined that "it is extremely likely that the Veteran's CAD, Type II DM, HTN, hyperlipidemia and PTSD all contributed to aggravating his erectile dysfunction beyond its natural progression." In formulating the opinion, the examiner reviewed the Veteran's medical records, and relied on his own expertise, knowledge, and training. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran's erectile dysfunction is secondary to his service-connected disabilities. Service connection is granted. 2. Entitlement to service connection for bilateral hearing loss As noted in the previous Board remand, the Board has already conceded the Veteran's noise exposure in service, and it is not in question that the Veteran has been diagnosed with bilateral hearing loss prior to his death. Nonetheless, the Board finds that the evidence does not demonstrate that the Veteran's bilateral hearing loss was related to conceded in-service noise exposure. The Veteran underwent a VA audiological evaluation in June 2015, but the Board found that the medical opinion was inadequate in its April 2019 decision; therefore, the Board has not considered the negative nexus opinion in its analysis below. Further VA opinion was obtained in April 2019. In the April 2019 report, the examiner opined that the Veteran's hearing loss was less likely than not related to his military service, to include his in-service noise exposure. The examiner explained that that the Veteran's in-service audiograms showed hearing sensitivity was within normal limits bilaterally at the time of enlistment and at separation. The examiner then cited to the Institute of Medicine study on military noise exposure in September 2005. The examiner explained that the study found that there is no scientific basis for delayed or late onset of noise-induced hearing loss, i.e., hearing normal at discharge and causally attributable to military noise exposure 20-30 years later. The examiner stated that because there was no hearing loss at separation, the study concluded that there is no evidence to suggest that the Veteran's hearing status would be impacted later in life because of the noise events in service. The Board finds that this opinion is probative because it relied on a review of the pertinent medical records, considered appropriated medical literature, and included a rationale. Thus, service connection for hearing loss on a direct incurrence basis is not warranted. In addition, even though the Veteran's bilateral hearing loss is a "chronic disease" under 38 C.F.R. § 3.309, the Board finds that he is not entitled to presumptive service connection for this condition. See 38 C.F.R. § 3.303(b). The Veteran's service treatment records do not show complaints or findings of bilateral hearing loss, so there were no manifestations during service. Also, the Veteran did not make any specific contentions that he experienced continuous bilateral hearing loss symptoms post-separation. Thus, service connection cannot be established under the presumptive basis. Accordingly, the claim for service connection for bilateral hearing loss is denied. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 3. Entitlement to a rating in excess of 10 percent prior to December 1, 2014, and in excess of 30 percent as of December 1, 2014, for PTSD As noted above, the Veteran's PTSD was rated as 10 percent disabling prior to December 1, 2014, and 30 percent disabling, thereafter. Initially, the Board notes that the Board remanded the claim in April 2019 in order to obtain private mental health treatment records. The RO's attempts to obtain these records were documented in the claims file as unsuccessful. Accordingly, the Board will evaluate the claim based on the available evidence in the claims file. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for PTSD when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 work-like setting; and the inability to establish and maintain effective relationships. A maximum 100 percent evaluation is for application when there is 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; and memory loss for names of close relatives, own occupation, or own name. On VA examination in November 2008, the Veteran complained of infrequent symptoms, of a mild severity. He was currently married. He described a good relationship with some of his children. He had friends. He enjoyed working on his house and spent a lot of time taking care of his adopted daughter who was ill. He denied any recent history of violence or assaults or suicide attempts. He demonstrated no impairment to thought process or communication as well as delusions or hallucinations. He endorsed a good history of maintaining minimal personal hygiene and other basic activities of daily living. He denied obsessive or ritualistic behaviors, panic attacks, depression and anxiety and impaired impulse control. The examiner noted that the Veteran continued to identify mild symptoms of PTSD, including persistent reexperiencing, avoidance, and heightened physiological arousal. He endorsed some occasional nightmares and occasional thoughts about Vietnam. He also endorsed some problems with sleep, concentration, irritability, hypervigilance, and exaggerated sorrow response. He described an infrequent frequency of these symptoms and being mild in severity. Overall, the examiner opined that the Veteran's PTSD symptoms had remained quite mild over the past several years. These findings prior to December 1, 2014, do not indicate that a rating higher than 10 percent was warranted for the Veteran's PTSD. The Veteran's symptoms were generally described as mild. Socially, the Veteran reported having a good relationship with some of his children and maintaining friendships. Moreover, there was no evidence that the Veteran was participating in any mental health treatment. These symptoms more closely approximate the criteria for a 10 percent rating for his PTSD. Effective December 1, 2014, the Veteran was assigned a 30 percent rating for his PTSD. Evidence during this period consisted of findings from a February 2015 VA examination report. The Veteran reported that he was married. He reported a close and loving relationship. He kept in contact with two of this three children. He talked to his extended family in New York on a monthly basis. He got along well with his coworkers with minimal socialization. On mental status examination, he was noted to be casually dressed and had good hygiene. His mood and affect were normal. He was socially appropriate. His cognition and memory appeared to be normal. There were no oddities of thought or behavior. The examiner noted that the Veteran had anxiety and difficulty in establishing and maintaining effective work and social relationships. The examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In addressing whether the Veteran is entitled to a higher rating for the period, effective December 1, 2014, the record shows that the 30 percent rating more adequately describes the Veteran's PTSD impairment. Socially, the Veteran continued to report having good relationships with his wife, most of his children and with co-workers. Essentially, findings from the February 2015 VA examination report describe more mild to moderate impairment due to PTSD and do not warrant a rating higher than 30 percent. In light of the foregoing, the Board concludes that ratings higher than 10 percent prior to December 1, 2014, and higher than 30 percent thereafter, for the Veteran's PTSD are not warranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. 4. TDIU prior to August 27, 2014 As noted above, from August 27, 2014, the Veteran was in receipt of a 100 percent rating for coronary artery disease and SMC based on housebound criteria being met. As such, the issue is whether a TDIU was warranted prior to August 27, 2014, remains for consideration. In a May 2017 TDIU application, the Veteran reported that he last worked full-time until August 21, 2015, as a bus driver. Where the evidence establishes that a Veteran is substantially gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As the most probative evidence of record demonstrates that the Veteran was gainfully employed on a full-time basis until August 2015, a TDIU prior to that time may not be granted. Accordingly, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU prior to August 27, 2014, is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.