Citation Nr: 20043891 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 12-04 840 DATE: June 30, 2020 ORDER Entitlement to service connection for hypogonadism is granted. Entitlement to service connection for hypothyroidism is granted. REMANDED Entitlement to an increased initial disability rating for service-connected depressive disorder, evaluated as 30 percent disabling prior to July 31, 2014 and 70 percent disabling thereafter, is remanded. Entitlement to an initial disability rating in excess of 10 percent for a service-connected traumatic brain injury (TBI) with cognitive disorder is remanded. Entitlement to an initial disability rating in excess of 30 percent for service-connected vertigo and dizziness with Meniere’s syndrome, associated with TBI is remanded. Entitlement to an increased initial disability rating for service-connected migraine headaches associated with TBI, evaluated as noncompensable prior to April 21, 2014 and 30 percent disabling thereafter is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected horizontal nystagmus associated with TBI is remanded. Entitlement to special monthly compensation at the housebound rate is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to April 21, 2014 is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, hypogonadism is due to his service-connected traumatic brain injury (TBI). 2. Resolving all reasonable doubt in the Veteran’s favor, hypothyroidism is due to his service-connected traumatic brain injury (TBI). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypogonadism have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The criteria for entitlement to service connection for hypothyroidism have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to May 1982. The Veteran passed away in January 2019. The Appellant is the Veteran’s surviving spouse who has been accepted as a substitute claimant for the purpose of processing these claims to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Veteran’s claims for service connection for hypogonadism and hypothyroidism were granted by the Board in a September 2017 decision that also remanded the remaining issues for additional development. Unfortunately, before the grant of the service connection claims was effectuated, the Veteran passed away. After a review of the claims file, the Board finds that for all practical purposes, the Veteran’s service connection claims have remained open. Accordingly, the Board will take jurisdiction over them. Service Connection Under the relevant laws and regulations, service connection may be granted on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for hypogonadism 2. Entitlement to service connection for hypothyroidism The Veteran asserts that he has hypothyroidism and hypogonadism due to his service-connected TBI. The medical evidence of record demonstrates that the Veteran was diagnosed with both hypogonadism and hypothyroidism during the appeal period. Additionally, service connection for TBI was granted from June 2009. Thus, the first two elements of secondary service connection, the presence of a current disability and a service-connected disability, have been met. As to evidence of a secondary nexus to service-connected TBI, in October 2015, Dr. A.M.S., the Veteran’s neurologist, opined that the Veteran had hypogonadism and hypothyroidism probably secondary to hypopituitarism that was an indirect result of his TBI. See November 2015 Medical Treatment Record Non-Government Facility, pages 3-4. According to Dr. A.M.S., “[t]he severity of the [Veteran’s] hypogonadism problem is evidence[d] by the VA awarding [service connection for] loss of use of creative organ for his [erectile dysfunction].” Id. at 4. Dr. A.M.S. similarly stated that “[t]he severity of [the Veteran’s] hypothyroidism is evidenced by his symptoms of muscular weakness, mental disturbance, sleepiness, constipation, and weight gain, coupled with a high thyroid stimulating hormone (TSH), requiring medications. Symptoms of depression, cognitive impairment with occasional suicidal ideations presented within months of the TBI as documented by [service] medical records that indicated that the TBI caused significant injury.” Dr. A.M.S. observed that “[t]he ensuing hypothyroidism and hypogonadism are presumptive for TBI patients.” The neurologist concluded that “[i]t is incongruous with the facts for VA to recognize TBI as the impetus and [erectile dysfunction] as the result, by denying the mechanics by which the disease progressed and ultimately resulted in the loss of use of the creative organ.” In September 2016, a VA endocrinologist opined that it was less likely than not that the Veteran’s hypothyroidism was proximately due to or the result of TBI with erectile dysfunction. The examiner explained that in hypothyroidism caused by hypothalamic or pituitary disease (TBI included), TSH secretion did not increase appropriately as T4 secretion fell. The examiner commented that there were cases when TSH may be slightly elevated in central hypothyroidism but that may be due to mutations in gene coding forming biologically inactive TSH. In TBI, the pituitary may be injured, compromising the formation and secretion of hormones such as the TSH. The secretion itself was compromised; genes were not mutated. As noted, the TSH was expected to be low to normal in relation to a low 4 and T3. In June 2016, the Veteran’s TSH test showed an elevated result. The examiner observed that a high TSH with low T3 and T4 denoted primary hypothyroidism that was commonly autoimmune. After a review of the above, the Board finds that the evidence is at least in equipoise regarding whether the current hypothyroidism and hypogonadism are related to the Veteran’s service-connected TBI. Thus, resolving all doubt in the Veteran’s favor, his claims for service connection are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased initial disability rating for service-connected depressive disorder, evaluated as 30 percent disabling prior to July 31, 2014 and 70 percent disabling thereafter, is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for a service-connected traumatic brain injury (TBI) with cognitive disorder is remanded. 3. Entitlement to an initial disability rating in excess of 30 percent for service-connected vertigo and dizziness with Meniere’s syndrome, associated with TBI, is remanded. 4. Entitlement to an increased initial disability rating for service-connected migraine headaches associated with TBI, evaluated as noncompensable prior to April 21, 2014 and 30 percent disabling thereafter, is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for service-connected horizontal nystagmus, associated with TBI, is remanded. 6. Entitlement to special monthly compensation at the housebound rate is remanded. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to April 21, 2014 is remanded. The Veteran’s remaining claims must be remanded to afford the Appellant every possible consideration. Pursuant to the September 2017 Board remand, the RO was directed to obtain outstanding treatment records, consider scheduling updated VA examinations, adjudicate the claim for SMC, and readjudicate the remaining claims in a supplemental statement of the case. A review of the claims file reflects that the outstanding treatment records were obtained and the Veteran attended examinations regarding his claims, but then the issues were returned to the Board without any subsequent adjudication. Because there has not been substantial compliance with the September 2019 Board remand directives, the matter must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); see also 38 C.F.R. § 19.31(c). The matters are REMANDED for the following action: Review all evidence submitted or obtained since issuance of the September 2017 Board decision, including the newly associated Social Security Administration treatment records and the August 2018 VA examination reports. After completing the above, and any other development as may be indicated, the issues on appeal should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Appellant should be issued a supplemental statement of the case and an appropriate period of time should be allowed for response before returning the case to the Board. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, 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.