Citation Nr: 22019045 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 08-06 921A DATE: March 31, 2022 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability is granted. Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis prior to June 25, 2007, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his erectile dysfunction is at least as likely as not related to his service-connected disability. 2. Prior to June 25, 2007, the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities preclude him from securing substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for erectile dysfunction, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The criteria for assignment of a TDIU on an extraschedular basis, prior to June 25, 2007, (from May 2006), have been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.16(b), 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to October 1963, with additional periods of unverified service. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. This case has been before the Board multiple times, most recently October 2021 when it was remanded for additional developments. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). The Board concludes that the Veteran has a current disability that is related to his service-connected mood disorder. Id. VA treatment records and VA examinations show the Veteran has a current diagnosis of erectile dysfunction. Thus, the question becomes whether the current disability is related to service. On this question there is probative evidence in favor of and against the claim. The evidence against the claim includes multiple VA medical opinions. However, the Board has previously determined that most of the opinions are inadequate and undertook several remands in an attempt to obtain an adequate opinion. In assessing the adequacy of the most recent examination provided after the October 2021 remand, the Board finds that the examiner has again failed to consider the specific information identified in the most recent remand directives, therefore the opinion is again inadequate. However, the December 2021 VA examination did provide a partial positive opinion in stating that erectile dysfunction can be a symptom of mood disorder with depressive features. The Board finds this to be a positive opinion that provides a nexus between the Veteran's erectile dysfunction and his service-connected mood disorder. The claim has been remanded numerous times to obtain an adequate opinion. The Board finds that remanding again for additional development on the question of nexus is not needed. The development of evidence in connection with claims for service connection will be accomplished when deemed necessary. (Emphasis added). 38 C.F.R. § 3.304(c). The Board finds there is an approximate balance of positive and negative evidence as to whether the diagnosed erectile dysfunction is related to his service-connected mood disorder. Although the records do not provide a nexus statement, when the complete record comprising of medical treatment records, the Veteran's competent, credible testimony and December 2021 VA examiner's statement that erectile dysfunction can be a symptom of mood disorder is given probative consideration. Resolving all doubt in favor of the Veteran, the Board finds that service connection for erectile dysfunction is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to TDIU on an extraschedular basis prior to June 25, 2007 In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable because of his service-connected disabilities. 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). After the most recent remand, the Agency of Original Jurisdiction (AOJ) referred the claim for extraschedular TDIU to the Director of Compensation and Pension Services. The Director denied entitlement to TDIU on an extraschedular basis in January 2022. The initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233 (2015); Ray, 31 Vet. App. at 66. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) includes two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray, 31 Vet. App. at 58. As sedentary is defined as doing or requiring much sitting the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1123 (2003). Prior to June 25, 2007, the Veteran's service-connected disabilities are bilateral hearing loss, 10 percent from September 1, 1967, and 40 percent from May 15, 2006; residuals of injury to the right leg (thigh) with arthritis of right knee, 10 percent from September 1, 1967; tinnitus 10 percent from December 2, 2002, and; tinea pedis/manis, 10 percent from May 15, 2006. The TDIU claim is pending from May 15, 2006. The Veteran's combined disability rating is 60 percent from May 2006. The schedular criteria for TDIU are met from June 25, 2007, the first date he had one disability rated at 40 percent and a combined rating of 70 percent. Prior to that date, the service-connected disabilities that resulted in the combined 60 percent rating cannot be considered "one disability" for these purposes. 38 C.F.R. § 4.16(a). On his formal application for TDIU in March 2010, the Veteran reported that he has a post college graduate education and stopped working in 1998 as a telecom manager due to his service-connected mood disorder, hearing loss and back disabilities. At a December 2020 Board hearing, the Veteran testified that the Veteran's service-connected disabilities cause him to be unable to procure and maintain substantially gainful employment. The Veteran's back disability limits his ability to work in physical settings and his mood disorder and hearing loss limits his ability to work in a sedentary setting. The Board finds that the positive and negative evidence is in approximate balance as to whether the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment prior to June 25, 2007. Thus, the Board will afford the Veteran the benefit of the doubt. Lynch, 21 F.4th at 776. Entitlement to an extraschedular TDIU is, therefore, granted for the period on appeal prior to June 25, 2007. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.