Citation Nr: 1632033 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 09-36 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability manifested by abscess pockets in the pelvis, to include as secondary to hairy cell leukemia ("abscess pockets in the pelvis"). 2. Entitlement to service connection for methicillin-resistant staphylococcus aureus ("MRSA") L2-L3 discitis/epidural abscess, to include as secondary to hairy cell leukemia ("epidural abscess"). 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hairy-cell leukemia and/or lumbar spinal stenosis. 4. Entitlement to an effective date prior to September 8, 2014 for the grant of special monthly compensation ("SMC") based on loss of use of a creative organ. 5. Entitlement to a temporary total rating based on hospitalization or convalescence for treatment of a service-connected disability. REPRESENTATION Veteran represented by: John S. Berry, Attorney-at-Law ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from December 2011, November 2014, and July 2015 rating decisions issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Lincoln, Nebraska. In a March 2013 decision, the Board, inter alia, denied service connection for abscess pockets in the pelvis, epidural abscess, and a temporary total rating based on hospitalization or convalescence for treatment of a service-connected disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("Court" or "CAVC"). Pursuant to a Joint Motion for Partial Remand, in December 2013 the Court ordered that the Board decision be remanded for readjudication in accordance with the joint motion. In a July 2014 decision, the Board, inter alia, remanded these three claims in accordance with the directives of the joint motion. In a November 2015 decision, the Board, again, remanded the three claims for further development. Such development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The two claims of service connection for erectile dysfunction and entitlement to an earlier effective date for SMC stem from the November 2014 and July 2015 rating decisions. In a separate November 2015 decision, the Board remanded them for further development, which has been completed. See Stegall, 11 Vet. App. 268. The two appeal streams were merged on appeal. FINDINGS OF FACT 1. The Veteran's abscess pockets in the pelvis and epidural abscess are considered current disabilities for the purposes of service connection, and they are associated with the Veteran's service-connected hairy-cell leukemia. 2. The Veteran's erectile dysfunction was not incurred in and is not otherwise related to his active military service. 3. The Veteran's erectile dysfunction is not proximately caused or aggravated by his hairy-cell leukemia or lumbar spinal stenosis, or their associated treatments, to include Oxycodone medication. 4. The Veteran's SMC for loss of use of a creative organ is effective September 8, 2014, the date of the claim for erectile dysfunction, and the law does not support an earlier effective date because this is the effective date of the underlying service-connected erectile disability. 5. The Veteran required convalescence for a surgery with severe postoperative residuals, to include abscess pockets in the pelvis and epidural abscess. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by abscess pockets in the pelvis have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2015). 2. The criteria for service connection for methicillin-resistant staphylococcus aureus L2-L3 discitis/epidural abscess have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2015). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 4. The criteria for an effective date prior to September 8, 2014 for the grant of SMC for the loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.352, 3.400 (2015). 5. The criteria for a temporary total disability rating based on convalescence for treatment of a service-connected disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.29, 4.30 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). With regard to the claims for abscess pockets in the pelvis, epidural abscess, and a temporary total rating, standard September and October 2011 letters satisfied the duty to notify provisions. With regard to the claims for erectile dysfunction and an earlier effective date for SMC, a standard April 2015 letter satisfied the duty to notify provisions. The Board recognizes that this letter was issued after the initial adjudication of the claim for erectile dysfunction; however subsequent readjudication of the claim in a March 2016 supplemental statement of the case ("SSOC") remedied this timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Furthermore, the claim for an earlier effective date for the grant of SMC for the loss of use of a creative organ arises from a disagreement with the initially assigned effective date after the benefit was granted; section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service and post-service treatment records have been obtained, to include private medical records. Records from the Social Security Administration ("SSA") have also been obtained. The Veteran was provided VA medical examinations in October 2011, October 2014, and January 2016. The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claims. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluation is fully informed, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted through various other avenues contained in the regulations. These include, but are not limited to, as based on a secondary theory of entitlement pursuant to 38 C.F.R. § 3.310, on a presumptive basis due to herbicide exposure pursuant to 38 C.F.R. § 3.309(e), on a presumptive basis due to chronic diseases pursuant to 38 C.F.R. § 3.309(a), and based on a continuity of symptomatology for chronic diseases pursuant to 38 C.F.R. § 3.303(b). To grant service connection for a disability under any theory of entitlement, however, there must be a current or "present" disability. See 38 C.F.R. § 3.303; see also Holton, 557 F.3d at 1366. This is a threshold issue. If a veteran does not have a current disability, then service connection cannot be granted. A current disability need not be present for the entire appeal period. The Court has found that a claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A. Abscess Pockets in the Pelvis and Epidural Abscess The Veteran seeks service connection for abscess pockets in the pelvis and epidural abscess, both to include as secondary to service-connected hairy cell leukemia. For the reasons that follow, the Board finds that service connection is warranted for both conditions. The evidence shows that the Veteran underwent chemotherapy treatment for hairy-cell leukemia in April 2001. In connection with this treatment, the Veteran contracted a severe MRSA infection that caused abscess pockets in the pelvis and epidural abscess. He was hospitalized with these problems at Bryan Medical Center until June 7, 2001. See June 2001 Discharge Summary from Bryan Medical Center. At that time, he was transferred to Madonna Rehabilitation Hospital for continuation of systemic antibiotics and physical therapy. See June 2001 Madonna Rehabilitation Hospital History and Physical note. He was discharged from Madonna Rehabilitation Hospital on July 3, 2001. See July 2001 Pharmacy Anticoagulation Note (t). VA examinations of October 2011, October 2014, and January 2016 are also in agreement that the MRSA infection that was associated with the Veteran's hairy cell leukemia caused his abscess pockets in the pelvis and epidural abscess. Thus, the Board finds that there is a nexus between these disabilities and the Veteran's service-connected hairy cell leukemia. The remaining question is whether the abscess pockets in the pelvis and epidural abscess can be considered current disabilities for the purpose of service connection. To that end, VA examination reports show that the disabilities were contracted during MRSA treatment and appeared to resolve without further residuals by July 6, 2001. Although these disabilities have not been shown since that point in time or since the Veteran filed his claims for service connection, the Board will resolve reasonable doubt in his favor and find that based on the unique factual circumstances of this case, to include the fact that the Veteran has been granted service connection for blindness in one eye resulting from the same MRSA infection, the 2001 diagnoses and treatment for those disabilities are sufficiently proximate to the filing of the claim for service connection such that the criterion for a current diagnosis is met for both claims. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Romanowsky, 26 Vet. App. at 289. The elements of service connection are therefore met. Service connection for abscess pockets in the pelvis and epidural abscess, both associated with hairy cell leukemia, is warranted. B. Erectile Dysfunction For the reasons that follow, the Board finds that service connection for erectile dysfunction is not warranted. The Veteran has asserted that his erectile dysfunction is caused or aggravated by his service-connected hairy-cell leukemia and/or lumbar spinal stenosis, the oxycodone he is prescribed to treat his low back disability, and his blood pressure medication (Lisinopril). The Veteran's medical records, as well as the October 2014 VA examination report, show that he does have a current diagnosis of erectile dysfunction. The Veteran has reported that symptoms related to this condition began in 1998, and a July 1998 medical record from Dr. O. shows that he was prescribed Viagra at that time. Thus, the Veteran's erectile dysfunction has been determined to have onset in 1998 and continued through the present day. See October 2014 VA examination report. The first element of service connection is met. The evidence of record does not indicate that this disability is directly related to service. The Veteran's service treatment records ("STRs") do not show any related symptoms or treatment for such a condition and it has been determined that the disability did not have its onset until approximately three decades after discharge from active service. Indeed, the Veteran, himself, has not made such an allegation. See Jandreau, 492 F.3d at 1377 (The Veteran is competent to relate the onset of his symptomatology of erectile dysfunction as it is readily observable.). His sole contentions have been that it should be service connected based on a secondary theory of entitlement due to his hairy-cell leukemia and/or lumbar spinal stenosis, their treatments, or his blood pressure medication. Thus, the Board concludes that there is no in-service incurrence or nexus relating this disability to the Veteran's active military service. There is no doubt to be resolved; service connection for erectile dysfunction is not warranted on a direct basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. In assessing the merits of service connection based on a secondary theory of entitlement, the Board is able to rule out service connection based on the Veteran's blood pressure medication, Lisinopril. See October 2014 VA examination report ("if any medicine causes [my] [erectile] [dysfunction], it might be my blood pressure medicine"). His VA treatment records show that this medication was prescribed to treat hypertension, and that is its current use, as well. See, e.g., October 2014 Active Outpatient Medications list ("Lisinopril 20 mg tab take one and one-half tablets by mouth every day for hypertension.") and March 2002 Pharmacy Anticoagulation Clinic Note ("added [L]isinopril"). Because the Veteran is not service connected for hypertension, service connection for erectile dysfunction as due to treatment for hypertension, to include medications, is not warranted. 38 C.F.R. § 3.310. The Board is also able to rule out service connection for erectile dysfunction as secondary to hairy-cell leukemia. This conclusion is based on the October 2014 VA examination report. Therein, Veteran reported that the symptoms of leukemia and erectile dysfunction both started in 1998, and the erectile dysfunction was fully developed prior to treatment for the leukemia and it was also not aggravated by the treatment. The examiner wrote that it is less likely than not that the erectile dysfunction was proximately due to or the result of or aggravated by hairy-cell leukemia. The examiner noted that leukemia can cause erectile dysfunction if it results in priapism with residuals, or if its treatment results in erectile dysfunction, but in this case the evidence did not support either scenario. The examiner added that, apart from these two scenarios, hairy-cell leukemia is not typically associated with erectile dysfunction. To the extent that the Veteran has alleged that his hairy-cell leukemia did proximately cause or aggravate his erectile dysfunction, the Board finds such statements to contradict his statements at the October 2014 VA examination and further notes that the Veteran is not competent to render such an etiological opinion because he lacks the requisite medical training or expertise. See Jandreau, 492 F.3d at 1377. Thus, these lay etiological conclusions are not persuasive, and are outweighed by the October 2014 examiner's opinion, which considered both the lay and medical evidence of record. The Board notes that there is otherwise no competent etiological opinion to the contrary. Thus, the preponderance of the evidence weighs against service connection for erectile dysfunction as due to hairy-cell leukemia; there is no doubt to be resolved; service connection is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. Lastly, the Board finds that service connection for erectile dysfunction as due to lumbar spinal stenosis is not warranted. This conclusion is supported by the October 2014 VA examination report, as well as the January 2016 supplemental opinion authored by the same examiner. In the October 2014 VA examination report, the examiner wrote that the Veteran's erectile dysfunction is less likely than not proximately due to or the result of or aggravated by lumbar spinal stenosis. The examiner wrote that while lumbar stenosis can be a cause of erectile dysfunction, in this case the Veteran's history did not suggest any association. The examiner also noted that the Veteran dined symptoms of erectile dysfunction occurring in association with flares of back pain, or radicular symptoms, or neurologic compromise. In the January 2016 supplemental examination, the examiner wrote that the Veteran's erectile dysfunction is less likely than not caused or aggravated by treatment for his back condition, to include Oxycodone. The examiner wrote that the Veteran reported that his erectile dysfunction is not due to oxycodone or similar medication and that he very rarely takes such medication. The examiner wrote that the Veteran reported that he has not been prescribed such medication in a really long time, and that his erectile dysfunction is present at all times and not only on the rare instances when he takes pain medication. The examiner wrote that, in addition to the Veteran's statements, he could find no link between the two conditions upon review of the medical record. The Board recognizes that the examiner noted that oxycodone or similar narcotic medication may contribute to erectile dysfunction, but it would be less likely than not that this would occur when someone is no longer taking the medication. While this is favorable evidence to the Veteran's claim, the Board reads it in light of the opinion as a whole, which considered the Veteran's medical records in finding that the two conditions were unrelated. Thus, the Board finds that further development is unnecessary. The Board also notes that the remaining competent evidence of record does not show that the Veteran's erectile dysfunction was proximately caused or aggravated by his lumbar spinal stenosis, to include its treatment with Oxycodone. The Board notes that the Veteran is not competent to provide this etiological opinion himself as he does not possess the requisite medical training or expertise. See Jandreau, 492 F.3d at 1377. And the examiner's opinions were made in consideration of the Veteran's lay statements and the medical evidence of record; thus, they are competent and persuasive. Accordingly, the preponderance of the evidence is against a finding that the Veteran's erectile dysfunction was proximately caused or aggravated by his lumbar spinal stenosis, to include its treatment; there is no doubt to be resolved; service connection is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. In summary, service connection for erectile dysfunction, to include as due to hairy-cell leukemia and lumbar spinal stenosis, is not warranted. III. Earlier Effective Date For the reasons that follow, the Board finds that an effective date prior to September 8, 2014 for the grant of SMC for loss of use of a creative organ is not warranted. With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., "special") compensation. Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. In general, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefore. 38 U.S.C.A. § 5110(a). An exception to this rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date otherwise, date of receipt of the claim." 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this case, VA received a claim for service connection for erectile dysfunction on September 8, 2014. A November 2014 rating decision granted service connection for decreased libido and denied service connection for erectile dysfunction. In a January 2015 notice of disagreement, the Veteran argued that service connection should have been granted and that he should also be receiving SMC for loss of use of a creative organ. The RO treated this January 2015 statement as a claim for SMC, and in a July 2015 rating decision the benefit was granted based on the service-connected decreased libido, with an effective date of September 8, 2014, the date of the erectile dysfunction claim. (Parenthetically, the Board notes that in the narrative of the July 2015 rating decision it was written that SMC for loss of use of a creative organ was granted effective September 18, 2014; however, this appears to have been in error and the correct date of September 8, 2014 was given in the rating code sheet.) Based on the procedural history of this claim, the Board finds no support for an effective date for SMC for loss of use of a creative organ prior to September 8, 2014. The date of the claim for SMC was January 2015, and the effective date of this benefit is prior to that date. The Board emphasizes that SMC is compensation payable "in addition to the basic rate of compensation otherwise payable on the basis of degree of disability." 38 C.F.R. § 3.350(a). It follows that SMC for loss of use of a creative organ generally cannot precede the effective date of the grant of service connection for the underlying erectile disability. As such, an effective date prior to September 8, 2014 for the grant of SMC for loss of use of a creative organ is not warranted. IV. Temporary Total Rating The Board finds that a temporary total rating for convalescence is warranted. A temporary total disability rating may be assigned pursuant to either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under section 4.29, a total rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. Under section 4.30, a total rating will be assigned when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by case, without surgery, of one major joint or more. A review of the claims file shows that the Veteran was hospitalized for 6 days in April 2001 for chemotherapy treatment for his service-connected hairy cell leukemia. Subsequently, the Veteran was hospitalized from May 1, 2001 to June 7, 2001 at Bryan Medical Center, a private non-VA facility, for treatment of a severe MRSA infection and its associated complications. Per the discharge record, these diagnoses included the Veteran's abscess pockets in the pelvis and epidural abscess. The Veteran was discharged to another private facility, Madonna Rehabilitation Hospital, where he received treatment from June 7, 2001 to July 3, 2001. This treatment included a continuation of antibiotics, as well as physical therapy. The hospitalization for chemotherapy treatment was less than 21 days in length; thus, a temporary total rating is not warranted. 38 C.F.R. § 4.29. The hospitalization at Bryan Medical Center was in excess of 21 days; however, there is no indication that Bryan Medical Center was a VA or VA-approved hospital or done at VA's expense. Accordingly, a temporary total rating is not warranted for the hospitalization at Bryan Medical Center. 38 C.F.R. § 4.29. Lastly, the Veteran had convalescence at Madonna Rehabilitation Hospital from June 7, 2001 to July 3, 2001. The Board finds the convalescence was for surgery with severe postoperative residuals, to include the service-connected abscess pockets in the pelvis and epidural abscess. Accordingly, a temporary total rating for convalescence is warranted for this period. 38 C.F.R. § 4.30(a)(2). ORDER Service connection for a disability manifested by abscess pockets in the pelvis, to include as due to service-connected hairy cell leukemia, is granted. Service connection for methicillin-resistant staphylococcus aureus L2-L3 discitis/epidural abscess, to include as due to service-connected hairy cell leukemia, is granted. Service connection for erectile dysfunction, to include on a secondary basis, is denied. Entitlement to an effective date prior to September 8, 2014 for SMC for the loss of use of a creative organ is denied. Entitlement to a temporary total disability rating based on convalescence is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs