Citation Nr: 20021674 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-13 183 DATE: March 26, 2020 ORDER Entitlement to service connection for irritable bowel syndrome status post total abdominal colectomy is granted. Entitlement to an increased rating for status post bilateral orchiopexy for testicular torsion, of 20 percent disabling, is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for obstructive sleep apnea (also claimed as sleep disturbance) is granted. Special monthly compensation (SMC) for erectile dysfunction, based on loss of use of a creative organ, is granted. FINDINGS OF FACT 1. The Veteran has a functional gastrointestinal disorder (FGID), namely IBS, which is presumptively due to his Persian Gulf War service. 2. For the period on appeal, the Veteran’s status post bilateral orchiopexy for testicular torsion has been manifested by complete atrophy of both testes. 3. The preponderance of the medical evidence of record establishes that the Veteran’s service-connected status post bilateral orchiopexy for testicular torsion has resulted in erectile dysfunction without evidence of penile deformity. 4. The preponderance of the medical evidence of record establishes that the Veteran’s obstructive sleep apnea is at least as likely as not related to his service-connected status post bilateral orchiopexy for testicular torsion, and treatment for the service-connected disability. 5. The Veteran’s anatomical loss of a creative organ is due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for IBS have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for an increased rating of 20 percent disabling status post bilateral orchiopexy for testicular torsion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.20, 4.115b, Diagnostic Code 7523. 3. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 4. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 5. The criteria for SMC for erectile dysfunction, based on loss of use of a creative organ, have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1)(ii). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1991 to April 1994. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio. In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. As discussed further below, the issues of a separate rating for erectile dysfunction and SMC are raised by the evidence of record as part and parcel of the pending increased rating claim for status post bilateral orchiopexy for testicular torsion. Service Connection Service connection is warranted for disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a claimant 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be established for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Service connection may also be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317 ; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10% or more not later than December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran served in the Persian Gulf War which allows for presumptive service connection for medically unexplained chronic multi-symptom illnesses including an FGID. 38 C.F.R. § 3.317(a). An FGID is defined as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. 38 C.F.R. § 3.317(a)(2)(i)(3), Note. Specific FGIDs include irritable bowel syndrome. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, 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. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for irritable bowel syndrome, also claimed as Lynch syndrome. The Veteran contends that he is entitled to service connection for IBS. The Board concludes that the Veteran is a Persian Gulf Veteran with a qualifying chronic disability, namely IBS. Service connection is therefore warranted. 38 C.F.R. § 3.317. In this case, the Veteran's DD-214 indicates that he had active service in Southwest Asia during the Persian Gulf War. A private medical opinion from a physician, and professor of Gastroenterology, Hepatology & Nutrition, states that (The Veteran) is under my care for Lynch syndrome and other gastrointestinal symptoms. Due to Lynch syndrome and a large adenoma, he has received a subtotal colectomy. He has had loose stools since his surgery which are well controlled with medication. However, he has also developed other gastrointestinal symptoms that should not be linked with Lynch syndrome or his surgery. At this point, I would classify them as IBS-spectrum disorder. This includes gastroesophageal reflux symptoms, abdominal discomfort and variability in his stools. There is no evidence of record which controverts these findings. FGIDs, including IBS, are medically unexplained chronic multi-symptom illnesses pursuant to 38 C.F.R. § 3.317(a)(2)(i)(3). In sum, the record supports a finding that the Veteran has IBS which manifested after his time in the Persian Gulf. There is no evidence in the claim file suggesting that this disability can be attributed to any known clinical diagnosis. Accordingly, the service connection for IBS is warranted. 2. Entitlement to an increased rating for status post bilateral orchiopexy for testicular torsion, currently evaluated as 0 percent disabling. The Veteran is service-connected for residuals of a bilateral orchiopexy (surgical fixation in the scrotum of an undescended testis). See Dorland’s Illustrated Medical Dictionary, 1321 (30th ed. 2003). He is currently rated as noncompensable (zero percent disabling) for this disability. The Veteran contends that he is entitled to a compensable rating because he experiences occasional scrotal pain, is unable to perform sexually, and has testicular atrophy. Bilateral orchiopexy may be rated by analogy to testicular atrophy. A noncompensable evaluation may be assigned for complete atrophy of one testis, and 20 percent for complete atrophy of both testes. 38 C.F.R. § 4.115b; Diagnostic Code 7523. In an October 2019 opinion, the Veteran’s treating urologist, Dr. B., opined that I have been treating the veteran, since August 2017 for complete testicular atrophy, erectile dysfunction and symptomatic testosterone deficiency. I have reviewed his in-service medical treatment records and my treatment records, and it is my opinion that he has symptomatic testosterone deficiency, weight gain, sleep apnea and erectile dysfunction are a direct consequence of his testicular torsion and orchiopexy which occurred in 1994 during his military service. The Board affords this opinion with high probative value. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the October 2019 private opinion was provided by a medical expert in urology who possesses the necessary education, training, and expertise to provide the requested opinions. The opinion is also shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s status post bilateral orchiopexy for testicular torsion has resulted in complete bilateral testicular atrophy. Additionally, as the statement is based on the findings of the treating physician, to include a physical examination of the Veteran, the Board thus places significant probative weight on this medical opinion. Given the facts and consistent with the benefit-of-the-doubt doctrine, the Board finds that a 20 percent rating under Diagnostic Code 7523 for atrophy of both testes is warranted. A 20 percent rating under Diagnostic Code 7523 is the maximum rating available. 3. Entitlement to service connection for erectile dysfunction, as secondary to status post bilateral orchiopexy for testicular torsion. The Veteran asserts that he has erectile dysfunction related to his service-connected status post bilateral orchiopexy for testicular torsion. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The question for the Board is whether the Veteran’s current diagnosis of erectile dysfunction is caused or aggravated by a service-connected disability. The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran's erectile dysfunction is the result of the Veteran's service-connected status post bilateral orchiopexy for testicular torsion. In an October 2019 private medical statement, Dr. B. opined that that the Veteran has erectile dysfunction is a “direct consequence of his testicular torsion and orchiopexy.” Dr. B. explained that the Veteran's erectile dysfunction is due to the Veteran’s testosterone therapy. Dr. B. is an expert with specific knowledge on the effects of the medications and has opined that the treatment resulted in several conditions, to include erectile dysfunction. As discussed above, the Board affords this opinion with high probative value. In light of the objective clinical medical evidence, and the Veteran’s credible and competent statements in support of the claim, the Board finds that the evidence supports service connection for erectile dysfunction. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990). Accordingly, service connection for erectile dysfunction is granted. 4. Entitlement to service connection for obstructive sleep apnea (also claimed as sleep disturbance), to include as secondary to the Veteran’s status post bilateral orchiopexy for testicular torsion. The Veteran asserts that he has obstructive sleep apnea related to his service-connected status post bilateral orchiopexy for testicular torsion. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The question for the Board is whether the Veteran’s current diagnosis of obstructive sleep apnea is caused or aggravated by a service-connected disability. The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran’s obstructive sleep apnea is the result of the Veteran’s service-connected status post bilateral orchiopexy for testicular torsion. In the October 2019 private medical statement, Dr. B. opined that that the Veteran has obstructive sleep apnea is a “direct consequence of his testicular torsion and orchiopexy.” Dr. B. explained “when he was placed on testosterone therapy, he gained 30-60 pounds. Subsequently, he has developed sleep apnea requiring medical treatment. Dr. B. is an expert with specific knowledge on the effects of the medications and has opined that the treatment resulted in weight gain and an aggravation of his obstructive sleep apnea. Obesity, although not itself a disability for which compensation may be awarded, may constitute an “intermediate step” in demonstrating service connection on a secondary basis for another condition. VAOPGCPREC 1-2017; Walsh v. Wilkie, U.S. Vet. App. No 18-0495 (Feb. 24, 2020). As discussed above, the Board affords this opinion with high probative value. In light of the objective clinical medical evidence, and the Veteran’s credible and competent statements in support of the claim, the Board finds that the evidence supports service connection for obstructive sleep apnea, as secondary to his service-connected status post bilateral orchiopexy for testicular torsion. Accordingly, service connection for obstructive sleep apnea is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. 5. Entitlement to Special Monthly Compensation. The Veteran also seeks SMC based on the loss of use of a creative organ. At his October 2019 Board hearing, the Veteran also contended that he is entitled to SMC based on the loss of use of a creative organ, due to his claimed erectile dysfunction. A footnote to DC 7523 for testis atrophy indicates that this disability is to be reviewed for entitlement to SMC. VA provides SMC if a Veteran, as a result of a service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). Therefore, the Board will consider whether SMC is appropriate based on the evidence of record. SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k), 38 C.F.R. § 3.350 (a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. VA policy is to pay SMC for loss of use of a creative organ whenever a service-connected disease causes loss of erectile power. It must initially be established; however, that the loss of erectile dysfunction is a manifestation of a service-connected disease or injury. The October 2019 private opinion from the Veteran’s treating urologist, states that the Veteran's erectile dysfunction is a direct consequence of his status post bilateral orchiopexy for testicular torsion. The Veteran is currently service-connected for status post bilateral orchiopexy for testicular torsion with erectile dysfunction. Resolving any doubt in the Veteran’s favor under 38 U.S.C. § 5107(b), the Board finds that based upon the medical evidence establishing that the Veteran has erectile dysfunction, with loss of use of erectile power, he has lost the use of a creative organ and SMC is warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.