Citation Nr: 22040126 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 17-52 864 DATE: July 13, 2022 ORDER Entitlement to higher initial staged ratings for bilateral hearing loss, currently rated as non-compensable from September 16, 2013, and 30 percent from March 18, 2022, is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not manifest functional impairment to the extent that higher staged initial ratings are warranted during the rating period. 2. The competent medical evidence attributes the Veteran's erectile dysfunction to his hypogonadism, which is not service-connected. CONCLUSIONS OF LAW 1. The criteria for entitlement to higher staged initial ratings for bilateral hearing loss, currently rated as non-compensable from September 16, 2013, and 30 percent from March 18, 2022, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1971 to May 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in September 2021. A transcript of the hearing is associated with the claims file. In January 2022, the Board remanded claims of service connection for erectile dysfunction, peripheral neuropathy of the bilateral lower extremities, and an increased rating for bilateral hearing loss. The agency of original jurisdiction (AOJ) was asked, among other things, to obtain VA examinations reflecting the current severity of bilateral hearing loss, and opinions regarding the nature and etiology of erectile dysfunction and peripheral neuropathy of the lower extremities. The Veteran appeared for VA examinations in March 2022. The examiner provided medical opinions responsive to the Board's directives. After reviewing the reports and the appellate record, the Board finds that substantial compliance is established with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). The AOJ subsequently granted service connection for peripheral neuropathy of the bilateral lower extremities and assigned a 10 percent rating for each extremity. See Rating Decision Narrative, March 2022. This is considered a full grant of the appeal as to those issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The AOJ also granted a 30 percent rating for bilateral hearing loss from March 18, 2022. This is considered a partial grant of the appeal. The question of higher staged initial ratings remains at issue. AB v. Brown, 6 Vet. App. 35 (1993). Higher Staged Ratings Bilateral Hearing Loss Disability ratings for hearing loss are determined by mechanically applying the rating criteria to certified audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Speech discrimination scores must be obtained using the Maryland CNC test. Id. The Veteran currently receives a non-compensable rating for his bilateral hearing loss from September 16, 2013, and a 30 percent rating from March 18, 2022. See Rating Decision Codesheet, March 2022. The question is whether higher staged initial ratings may be assigned. The Board has reviewed VA treatment records. For example, in January 2014, the Veteran attended a consultation with the VA audiology department. See CAPRI, September 2017 (p.134). He endorsed a longstanding history of hearing loss, but denied otalgia, aural pressure, dizziness, and civilian noise exposure. The audiologist found normal hearing sensitivity through 2000 hertz, with moderate to severe sensorineural hearing loss at the frequencies from 3000 to 8000 hertz. She noted that the Veteran had an "excellent word recognition score." The Veteran underwent a VA examination in November 2014. He reported difficulty hearing people and having to ask them to repeat. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 60 55 LEFT 10 15 50 70 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. Puretone threshold averages were 40 in the right ear and 51.25 in the left ear. When applied to Table VI, this results in a value of I for the right ear and II in the left ear, and when these values are applied to Table VII, the result is a non-compensable rating. 38 C.F.R. § 4.7. The Veteran underwent another VA examination in March 2022. He reported more trouble with high frequency sounds, turning up the volume on his phone and TV, and having more trouble understanding people when background noise is present. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 55 75 70 LEFT 35 45 70 80 80 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 44 percent in the left ear. Puretone threshold averages were 60 in the right ear and 68.75 in the left ear. When applied to Table VI, this results in a value of V for the right ear and VIII in the left ear, and when these values are applied to Table VII, the result is a 30 percent rating. 38 C.F.R. § 4.7. The Board finds that the persuasive weight of the evidence is against higher staged initial ratings for bilateral hearing loss. The objective audiometric data obtained at the VA examinations shows that the Veteran's hearing loss has manifested no more functional impairment than what it contemplated by a non-compensable rating prior to March 18, 2022, and a 30 percent rating from that date. 38 C.F.R. § 4.2. The Board has reviewed VA and private treatment records, but finds no evidence therein that supports higher staged ratings for bilateral hearing loss. The Veteran's lay testimony was reviewed. However, disability ratings are determined by the application of the rating schedule, which does not support a higher rating based on the functional impairment in this case. 38 C.F.R. § 4.1. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Moreover, the Veteran has not asserted, nor does the appellate record reasonably suggest, that he experiences exceptional or unusual impairment necessary to consider a potential referral for extraschedular rating consideration under 38 C.F.R. § 3.321(b). In summary, the persuasive weight of the evidence is against assigning any higher staged initial ratings for bilateral hearing loss. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. (CONTINUED NEXT PAGE) Service Connection Erectile Dysfunction Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The Veteran has a present diagnosis of erectile dysfunction as confirmed by a VA examination in March 2022. See C&P Exam, March 2022. He asserts that his erectile dysfunction is proximately due to or aggravated by his service-connected diabetes mellitus type II. See Hearing Transcript, September 2021 (pp.12-13). The Veteran underwent a VA examination in March 2022. The examiner diagnosed hypogonadism with erectile dysfunction beginning in 2013. She specifically noted that the etiology of the Veteran's erectile dysfunction was due to hypogonadism. Service connection is not in effect for the Veteran's hypogonadism. See 38 C.F.R. § 3.310; Rating Decision Codesheet, March 2022. After indicating that she had reviewed all relevant records pertaining to the Veteran's erectile dysfunction, the examiner opined that it was not at least as likely as not that the Veteran's erectile dysfunction began during or is etiologically related to active service. She also directly considered the Board's questions about whether the Veteran's erectile dysfunction is proximately due to or underwent any incremental increase in severity due to service-connected diabetes mellitus type II, but opined that it is not at least as likely as not. As rationale, she explained that "hypogonadism is the cause of [erectile dysfunction]" and certified that she reviewed all relevant records pertaining to the Veteran's conditions. The Board has reviewed the Veteran's VA and private treatment records. They show a history of hypogonadism and erectile dysfunction. There is nothing within such records, however, that links the Veteran's erectile dysfunction to his service-connected diabetes mellitus type II. The contrary is shown. For example, a private clinician with Endocrinology Associates in January 2013 noted that the Veteran had "inadequacy of penile erection." The clinician assessed "hypogonadotropic hypogonadism", but did not diagnose erectile dysfunction or link it to diabetes mellitus type II. The Board concludes that the persuasive weight of the evidence is against a nexus between the Veteran's erectile dysfunction and his diabetes mellitus type II. In reaching this finding, the Board has considered the medical and lay evidence. The March 2022 VA examiner found that the etiology of the Veteran's erectile dysfunction is due to his hypogonadism, and that his erectile dysfunction is not proximately due to, nor underwent any incremental increase in severity due to, service-connected diabetes mellitus type II. She reviewed the claims file and rendered a persuasive medical opinion consistent with her professional expertise and the findings of her examination. The Board affords her conclusions probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the remainder of the medical evidence. However, there is no competent medical evidence that challenges the March 2022 VA examiner's finding that the Veteran's erectile dysfunction is due to hypogonadism or otherwise suggests, under the facts of this case, that his erectile dysfunction is secondary to service-connected diabetes mellitus type II. The Veteran's lay statements were reviewed. Lay evidence is generally competent to report on matters that are capable of ordinary observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Yet, the Veteran has not been shown to have the complex medical knowledge of the genitourinary, endocrine, and central nervous systems necessary to link his erectile dysfunction to diabetes mellitus type II. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board affords higher probative weight to the competent medical evidence. In summary, the persuasive weight of the evidence is against the claim of service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus type II. The benefit-of-the-doubt standard may not be invoked. The appeal is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.