Citation Nr: 21042764 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-33 280 DATE: July 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. From February 1, 2014, entitlement to a disability rating in excess of 60 percent for prostate cancer residuals is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for aortic aneurysm, to include as secondary to hypertension, is remanded. Entitlement to an increased disability rating for erectile dysfunction with penile abnormality, currently evaluated noncompensably (zero percent) disabling prior to September 23, 2020, and 20 percent disabling, thereafter, is remanded. Entitlement to a compensable disability rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran incurred right ear hearing loss during active duty. 2. From February 1, 2014, the Veteran's prostate cancer residuals are rated as 60 percent disabling, which is the maximum schedular rating permitted for prostate cancer residuals. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. [D The criteria for From February 1, 2014, entitlement to a disability rating in excess of 60 percent for prostate cancer residuals have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to September 1970. These matters come before the Board of Veterans' appeals (Board) on appeal from April 2014, May 2014, and November 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the issues of entitlement to service connection for hypertension and right ear hearing loss, as well as the claims for increased ratings for left ear hearing loss, residuals of prostate cancer, and erectile dysfunction. In January 2020, the Board remanded the issue of entitlement to service connection for an aortic aneurysm. These appeal streams were merged in June 2021. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Evidence that is in equipoise is resolved in favor of the claimant. 1. Entitlement to service connection for right ear hearing loss The Veteran sought service connection for bilateral hearing loss and was granted service connected for left ear hearing loss. The question now for the Board is whether the Veteran's currently diagnosed right ear hearing loss is also etiologically related to his military service, and the Board finds that it is. The Veteran's Form DD 214 indicates his military occupational specialty (MOS) was that of a helicopter pilot, an MOS that carries with it a high probability of hazardous noise exposure. The record also contains an October 2013 VA audiological examination that sufficiently explains the relation between the Veteran's hearing loss and his military service, to include his time as a helicopter pilot. The VA examiner pointed to significant threshold shifts in both ears that occurred during service as an indication that his hearing loss was related to service. However, at the time of the October 2013 VA examination, the Veteran's right ear did not meet the criteria for a diagnosis of hearing loss for VA purposes, as according to 38 C.F.R. 3.385. Thus, significantly, when this issue was last before the Board in February 2019, the only remaining element to be satisfied was the criteria for a current diagnosis of right ear hearing loss according to 38 C.F.R. 3.385. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran was provided another VA audiological examination in December 2020. At the examination, the Veteran's right ear was found to have puretone thresholds of 25 dB, 45 dB, 50 dB, and 55 dB, respectively, at the frequencies 1000, 2000, 3000, and 4000 Hz. These results demonstrate the Veteran now has hearing loss for VA purposes in his right ear. See 38 C.F.R. 3.385. However, the VA examiner opined that the Veteran's right ear hearing loss was less likely than not related to his military service. Thus, as the record stands, there is one positive VA opinion and one negative VA opinion regarding whether the Veteran's right ear hearing loss is etiologically related to service. As the Board finds both opinions equally valid, the evidence is in equipoise as to whether the Veteran's right ear hearing loss is also related to his military service, as is his left ear hearing loss. In such a situation, the evidence must be resolved in favor of indicating his right ear hearing loss is related to his military service. Thus, the Veteran now meets all three criteria for service connection for right ear hearing loss. The appeal is granted. Increased Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 2. From February 1, 2014, entitlement to a disability rating in excess of 60 percent for prostate cancer is denied. The Veteran seeks an increased rating for the residuals of his prostate cancer and subsequent treatment. The Board finds an increased rating is not warranted. At the outset, the Board notes that the provisions of 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer residuals. A Note following that Diagnostic Code explains that following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of section 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, DC 7528, Note. The Veteran filed for service connection for prostate cancer on June 28, 2013 and underwent surgery on July 2, 2013. In an April 2014 rating decision, the RO granted service connection beginning June 28, 2013 and assigned a 100 percent disability rating effective the same day, and assigned a 60 percent disability rating effective February 1, 2014 following expiration of the six-month period following the Veteran's surgical treatment and VA examination to determine how best to rate his residuals. There is no evidentiary basis for continuance of the 100 percent disability rating for prostate cancer under DC 7528 from February 1, 2014. The Veteran is no longer receiving any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure for the adenocarcinoma of the prostate, which is the requirement for a 100 percent disability rating. The Veteran's March 2014 VA prostate examination noted he was in remission. His September 2020 VA prostate examination confirms that he is still in remission. As explained above, if there has been no local recurrence of metastasis of the neoplasm, adenocarcinoma of the prostate is to be rated based on residuals of either voiding dysfunction or renal dysfunction, whichever is predominant. Renal dysfunction has not been identified as a residual manifestation of the Veteran's adenocarcinoma of the prostate in the evidence of record. Moreover, the VA examiners are consistent in their findings that his residual disability primarily manifests as a voiding dysfunction. Hence, he will be rated under the criteria for voiding dysfunction. Voiding dysfunction is evaluated under the rating criteria for urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For urine leakage, a 20 percent rating for a voiding dysfunction is warranted when wearing absorbent materials which must be changed less than two times per day is required; a 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day; a maximum of 60 percent rating is warranted for requiring the use of an appliance, or wearing of absorbent materials which must be changed more than four times per day. Id. For urinary frequency, a 20 percent rating is warranted where daytime voiding interval is between one and two hours, or awakening to void three to four times per night; a maximum rating of 40 percent rating is warranted where there is evidence of daytime voiding interval less than one hour, or awakening to void five or more times per night. Id. For obstructed voiding, a 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization; a 10 percent rating contemplates marked obstructive symptomatology, such as 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; markedly diminished peak flow rate, less than 10 cc/sec; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. Id. The Veteran was provided his first VA prostate examination in March 2014. The examiner recorded the Veteran as having a voiding dysfunction requiring the use of absorbent materials that needed to be changed more than four times per day. It was also recorded that the Veteran's urinary frequency was between two and three hours during the day and three to four times over night. No other complications or residuals were recorded, except for the Veteran's erectile dysfunction, which is addressed below. Thus, as of March 2014, the Veteran's prostate cancer residuals were appropriately rated as 60 percent disabling, as he was required to wear and change absorbent materials more than four times per day. DC 7528 contemplates a 60 percent disability rating for this symptomatology. The Veteran was provided a second VA prostate examination in September 2020. At this examination, the Veteran was found to wear and need to change absorbent materials two to four times per day. However, his urinary frequency had increased to a voiding interval of less than 1 hour during the day and five times overnight. He also noted frequent accidental leakage. The Veteran described a strong stream and the ability to empty well, but the need to urinate every fifteen to twenty minutes. Thus, the evidence from the September 2020 examination demonstrates the Veteran's prostate cancer residuals are not due a disability rating in excess of 60 percent. His near continuous leakage required the use of and need to change absorbent materials two to four times a day and he suffered a voiding interval of less than one hour, which are symptoms that do not suggest a disability rating in excess of 60 percent. The Veteran is rated at 60 percent for his prostate cancer residuals beginning February 1, 2014. This is the maximum rating available for urinary leakage under 38 C.F.R. § 4.115a for voiding dysfunction; higher ratings are not available for urinary frequency or obstructed voiding. The Veteran does not have renal dysfunction associated with his prostate cancer that would warrant a higher rating. The Board has considered the Veteran's contention that his prostate cancer residuals also include an inability to have sex and loss of creative organ. However, he is already service-connected for erectile dysfunction and is receiving special monthly compensation for loss of a creative organ. He is already being compensated for this symptomatology. The preponderance of the evidence demonstrates that the Veteran is not entitled to a higher rating for his prostate cancer residuals. Thus, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD is remanded. Generally, when a Veteran is provided a VA examination, VA must ensure that it is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, a Board remand affords the Veteran a right to compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Veteran was provided a VA examination on his hypertension in April 2020. The Board's February 2019 requested an examiner opine on whether the Veteran's hypertension was caused or aggravated beyond its natural progression by the Veteran's PTSD. The April 2020 examiner opined that "PTSD does not cause hypertension" and provided an explanation for a lack of causation. The Board finds this opinion inadequate and in violation of the Board's prior remand directive requesting this secondary service connection opinion. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that secondary service connection opinions require separate findings and rationales for causation and aggravation, as they are independent concepts. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Here, the examiner only provided a rationale towards the causative prong of this question. As such, the Veteran must be provided another VA examination on whether his hypertension was caused or aggravated beyond its natural progression by his service-connected PTSD. Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for aortic aneurysm, to include as due to hypertension is remanded. In January 2020, the Board remanded the Veteran's claim for service connection for an aortic aneurysm for a VA examination. In May 2020, the Veteran was provided this examination. The examiner opined that the Veteran's aortic aneurysm was at least as likely as not related to the Veteran's hypertension. As the Veteran's claim for service connection for hypertension is remanded herein, so must his claim for service connection for an aortic aneurysm. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. Entitlement to an increased disability rating for erectile dysfunction with penile abnormality, currently evaluated noncompensably (zero percent) disabling prior to September 23, 2020, and 20 percent disabling, thereafter, is remanded. The Board notes that the Veteran has appealed for an increased rating for his erectile dysfunction. Following the Board's February 2019 remand, the RO increased his noncompensable rating to 20 percent disabling, effective September 23, 2020. However, VA has not issued a Supplemental Statement of the Case (SSOC) as to this issue, which must also include an explanation as to why the Veteran's erectile dysfunction is not due a 20 percent disability rating prior to September 23, 2020. Thus, the claim must be remanded for the issuance of an SSOC. 4. Entitlement to a compensable disability rating for left ear hearing loss is remanded. Due process requires the RO assign a rating in the first instance. As service-connection for right ear hearing loss has been granted herein, the RO must now address the appropriate rating for the Veteran's now service-connected bilateral hearing loss. The matters are REMANDED for the following action: 1. Obtain any updated VA treatments records. 2. After obtaining additional records, obtain and addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's currently diagnosed hypertension, to include as due to the Veteran's service-connected PTSD. The electronic claims file must be made available to the examiner. An in-person examination is left to the examiner's discretion. Based on a review of the record, the examiner is asked to opine on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed hypertension is (a) proximately due to, or (b) aggravated beyond its natural progression by his service-connected PTSD. The examiner is reminded that causation and aggravation are independent concepts and should have separate findings and rationales. See El-Amin v. Shinseki, 26 Vet. App. 136, 139-41 (2013); Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. The opinion must be based on medical principles and consideration of the Veteran's entire disability picture. A complete rationale for all opinions must be provided. A complete rationale is one with clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. 3. Furnish the Veteran with a Supplemental Statement of the Case regarding the claim of entitlement to an increased rating for erectile dysfunction with penile abnormality. The Board notes the penile deformity for which he is in receipt of a 20 percent disability rating was first noted on the record at his March 2014 VA examination. 4. Assign a disability rating for bilateral hearing loss. 5. Readjudicate the issues on appeal, including his claim for service connection for an aortic aneurysm, which was remanded as inextricably intertwined. 6. Provide the Veteran a copy of the readjudication of his appealed issues and afford in an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, Associate 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.