Citation Nr: 18160340
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 18-11 241
DATE:	December 26, 2018
ORDER
Entitlement to service connection for erectile dysfunction is denied.
Entitlement to a rating more than 10 percent for tinnitus is denied.
REMANDED
Entitlement to a rating more than 50 percent for bilateral hearing loss is remanded.
Entitlement to a rating more than 30 percent for adjustment disorder with mixed anxiety and depressed mood (acquired psychiatric disorder) is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence of record does not show that the Veteran’s erectile dysfunction is related to service.
2. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. Factors rendering the application of the regular schedular provisions impractical have not been demonstrated.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017)
2. The criteria for entitlement to a rating more than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from June 1962 to October 1966. 
A September 2018 rating decision granted entitlement to a total disability rating based on individual unemployability (TDIU) and basic eligibility to Dependents’ Educational Assistance (DEA) benefits, both effective June 12, 2015.
The Board observes that the Veteran filed a notice of disagreement (NOD) with respect to several recent rating decisions that denied the issue of entitlement to an increased rating for a lung disability, as well as claims for earlier effective dates for a lung disability, TDIU, and DEA benefits. However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran's NODs have been acknowledged by the RO and additional action is pending. As such, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the NODs have been recognized and additional action is pending at the RO, Manlincon is not applicable in this case.
The Board further observes that a different appellate stream exists for several service connection and increased rating claims other than the ones discussed herein. Those issues will be addressed in a separate Board decision.
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).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
1. Entitlement to service connection for erectile dysfunction. 
The Veteran seeks entitlement to service connection for erectile dysfunction.
Initially, the Board notes that the Veteran’s service records are silent as to any complaints of or treatment for erectile dysfunction.
The Board further notes that the Veteran has received some VA and private treatment for multiple medical conditions, including erectile dysfunction, for which he is prescribed medication. 
The Board finds that the preponderance of the evidence of record shows no nexus to service has been established for erectile dysfunction. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess any pertinent medical training or expertise, the Veteran is not competent to render an opinion on the etiology of his erectile dysfunction. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the Veteran’s opinion that his erectile dysfunction occurred as a result of his active service is not a competent medical opinion and it cannot be assigned any probative weight.
Simply put, no medical professional, VA or otherwise, has suggested that the Veteran’s claimed erectile dysfunction is etiologically related to service. Furthermore, the Veteran did not file a claim of service connection for erectile dysfunction until many years following his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Finally, there is no medical evidence of a nexus between service and the Veteran’s erectile dysfunction. See Pond v. West, 12 Vet. App. 341 (1999). 
Given the above, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994).
In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.
2. Entitlement to a rating more than 10 percent for tinnitus.
The Veteran contends that he is entitled to a higher disability rating for his service-connected tinnitus. 
The Veteran’s tinnitus is evaluated as 10 percent disabling under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Moreover, there is no contention nor evidentiary showing that there is such impairment due to tinnitus as to render application of the regular schedular provisions impractical. As such, the claim is denied. See 38 U.S.C. § 5107.
It is noted that the Veteran is separately service connected for Meniere’s Disease, and for bilateral hearing loss.  Symptoms of those disorders are not for separated consideration for the rating assigned for tinnitus.
REASONS FOR REMAND
1. Entitlement to a rating more than 50 percent for bilateral hearing loss is remanded.
Review of the record reveals that a remand is required in order to provide a new VA audiological examination. To that end, the Board notes that the Veteran’s most recent and pertinent VA audiological examination took place in August 2015. Audiological testing revealed the following results:
Frequency
500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Left	40	40	60	68	75
Right	70	70	65	70	80

Additionally, Maryland CNC Speech Discrimination testing yielded a score of 84 percent for the left ear, while the right ear could not be tested This examination ultimately resulted in a continuation of his 50 percent rating for bilateral hearing loss.
The Veteran’s medical treatment records suggest that his hearing loss may have worsened since his previous VA examination. Furthermore, in March 2018, the Veteran stated that his hearing “has dramatically decreased and I feel I should be re-examined.” See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). As such, a contemporaneous VA audiological examination is warranted. 
2. Entitlement to a rating more than 30 percent for adjustment disorder with mixed anxiety and depressed mood (acquired psychiatric disorder) is remanded.
Similarly, the Veteran’s most recent and pertinent VA psychiatric examination was conducted in August 2015. The VA examiner noted that a mental disorder has been formally diagnosed, but that symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner listed depressed mood and anxiety as the Veteran’s main psychiatric symptoms. This examination resulted in a continuation of his 30 percent rating. 
Notably, in March 2018, the Veteran stated that his acquired psychiatric disorder has worsened in severity. He also requested a new examination. Given the above, a new VA psychiatric examination is needed. 
The matters are REMANDED for the following action:
1. Schedule the Veteran for a new VA audiological examination to assess the current severity of his bilateral hearing loss disability. The audiologist is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed.
The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1000, 2000, 3000, and 4000 Hz and speech recognition scores using the Maryland CNC Test. The VA audiologist must fully describe the functional effects caused by the bilateral hearing loss disability in the final report.
2. Next, arrange for a VA psychiatric examination. Forward the entire electronic claims file to a suitably qualified VA examiner to determine the current severity of the Veteran’s adjustment disorder with mixed anxiety and depression (acquired psychiatric disorder). In accordance with the latest worksheet for rating acquired psychiatric disorders, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of his condition. The examiner should also identify the nature, frequency, and severity of all current manifestations of the Veteran’s current service-connected acquired psychiatric disorder. The electronic claims folder must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the electronic claims file has been reviewed.
3. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review 
 
any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once.

 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Miller, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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