Citation Nr: 21005155 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 18-52 304 DATE: January 29, 2021 ORDER Entitlement to service connection for sarcoidosis is dismissed. Entitlement to a separate compensable rating for erectile dysfunction is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a rating in excess of 10 percent for hypertension is remanded. Entitlement to a separate compensable rating for chest pain is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran was awarded service connection for sarcoidosis in an August 2020 rating decision; constituting a full grant of the benefits sought on appeal. 2. The Veteran’s erectile dysfunction is not manifested by deformity of the penis. 3. The Veteran’s tinnitus is related to hazardous noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for sarcoidosis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for separate compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, Diagnostic Code 7522. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to June 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 Decision, in pertinent part, the Board denied the Veteran’s claim for a rating in excess of 10 percent for hypertension and remanded the other claims captioned above. In a June 2020 Order, the Court of Appeals for Veterans Claims (the Court) vacated the September 2019 Board decision to the extent that it denied the Veteran’s claim for an increased rating for hypertension, and remanded the case to the Board for adjudication consistent with the terms of the Joint Motion for Remand (JMR). With exception to the Veteran’s claim for service connection for hypertension, the remaining claims captioned above were before the Board in July 2020, at which time they were remanded for further development. 1. Entitlement to service connection for sarcoidosis It is a well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, a Court lacks jurisdiction. See Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990); Bond v. Derwinski, 2 Vet. App. 376 (1992). The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). Here, the Veteran’s claim of entitlement to service connection for sarcoidosis was resolved by a full and complete grant of the benefits requested in an August 2020 rating decision. There is no outstanding error of fact or law alleged for the Board to address, and it follows that the appeal must be dismissed. 2. Entitlement to a separate compensable rating for erectile dysfunction The Veteran was originally awarded service connection for hypertension with erectile dysfunction. He now contends that a separate compensable rating is warranted for erectile dysfunction. During the period on appeal, the Veteran was awarded a separate noncompensable rating for erectile dysfunction. Thus, the decision herein will address whether a compensable rating is warranted for the condition. Erectile dysfunction is rated by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated as 20 percent disabling. In this case, February 2017 and February 2020 VA Male Reproductive System Conditions Disability Benefits Questionnaires showed the Veteran took Viagra, as needed, and Sildenafil on a continuous basis for his erectile dysfunction. A physical examination was not performed on either condition, but there was no indication that the Veteran had any deformity of the penis. While the record shows that the Veteran has experienced loss of erectile power, for which he takes medication, the record does not show any finding of penile deformity. Thus, a separate compensable rating for erectile dysfunction under Diagnostic Code 7522 is not warranted. Although a separate, compensable rating is not warranted for the Veteran's erectile dysfunction, the Board does note that he has been separately awarded special monthly compensation (SMC) based on the loss of use of a creative organ, effective November 14, 2016. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). 3. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The medical evidence of record, to include a May 2018 private treatment record and August 2018 VA examination, establishes that the Veteran has a current diagnosis of tinnitus. The Veteran’s service treatment records (STRs) contain a March 1988 audiogram conducted at separation, which shows a significant threshold shift. Additionally, the Veteran has reported acoustic trauma during service related to artillery fire, machine guns, and other weapons. He further reports the onset of his tinnitus in 1986 during service. Thus, the board finds that the elements of a current diagnosis and an in-service incurrence have been met. The remaining inquiry for the Board is whether the Veteran’s tinnitus is related to active service. When this matter was last before the Board in July 2020, the Board found that an August 2018 VA audiological examination was incomplete for rating purposes. Specifically, the Board noted that the opinion errantly relied on a finding that the Veteran’s hearing was within normal limits at separation. Accordingly, the August 2018 examination is of no probative value. The medical evidence of record also includes a private evaluation by Dr. P.Y., submitted in May 2018. Dr. P. Y. noted that the Veteran reported exposure to acoustic trauma of artillery fire, including a Howitzer 155, machine guns, and weapons fire. Dr. P. Y. opined that it was at least as likely as not that the Veteran’s tinnitus was directly and causally related to acoustic trauma during service. The same May 2018 correspondence includes a handwritten medical opinion from S. J., an audiologist. S. J. noted that the Veteran served on active duty for 16 years, which included concussive noise exposure from field artillery, a 155 mm tank, firing range, aircraft noise, paratrooper, and forklifts. S. J. further noted that it is well established that noise exposure causes tinnitus and concluded that it is as likely as not that the Veteran’s tinnitus was a result of noise exposure during service. The Board finds that collectively, the May 2018 private medical opinions are highly probative, as they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, there is no competent medical opinion of record to refute the findings of the May 2018 opinions. In this case, the Board finds that the preponderance of the evidence supports a finding that the Veteran’s current tinnitus is related to hazardous noise exposure during active service. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for hypertension is remanded. In the June 2020 JMPR cited above, the parties agreed that the Board did not provide an adequate statement of reasons and bases in its August 2019 decision denying the Veteran’s claim for an increased rating for hypertension. Specifically, the JMPR pointed out that the Board did not address a November 2016 stress test showing systolic blood pressure measured at 212 during peak exercise. The Board notes that while blood pressure readings have been associated with the claims file during the appellate period, the Veteran has not been afforded a VA examination to address his hypertension since July 1998. Additionally, in a May 2018 private evaluation, Dr. P. Y. indicated that there had been an extension of the Veteran’s hypertension; noting that he was currently on 3 medications to control his blood pressure. In this case, given the evidence suggesting worsening of the Veteran’s hypertension and given the passage of time since the last VA examination, the Veteran should be scheduled for a new VA examination to determine the current severity of his hypertension. 38 C.F.R. § 3.327(a); see Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a separate compensable rating for chest pain is remanded. The Board also finds that the Veteran’s claim for a separate compensable rating for chest pain is inextricably intertwined with his claim for an increased rating for hypertension. The Board notes that the Veteran was previously service-connected for hypertension with chest pain (now rated as hypertension). As the Veteran’s hypertension claim is being remanded herein for a contemporaneous VA examination, an inquiry should be made into the Veteran’s chest pain as it relates to his hypertension. 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran’s claim for service connection for bilateral hearing loss was last before the Board in July 2020. As noted above, the Board found that an August 2018 VA audiological examination was incomplete for rating purposes, and remanded the matter for a new VA examination. A review of the claims file shows no indication that the Veteran has been scheduled for an audiological examination as directed by the July 2020 remand. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the medical evidence of record does not conclusively establish that the Veteran has hearing loss in the right ear for VA purposes. Accordingly, remand is warranted to afford the Veteran a VA examination. 4. Entitlement to service connection for sleep apnea Throughout the appellate period, the Veteran has contended that he suffers from sleep apnea in addition to his now service-connected sarcoidosis. Notably, the Veteran’s claims for service connection for sarcoidosis and sleep apnea were claimed as two separate issues in the Veteran’s initial November 2016 claim. Additionally, the Veteran has contended that his sleep apnea is caused or aggravated by a service-connected condition, to include sarcoidosis. The Board notes that throughout the appellate period, the Veteran’s claims for service connection for sleep apnea and sarcoidosis have been characterized as a single claim for service connection. However, the Board finds that the Veteran’s diagnosed sarcoidosis and sleep apnea are separate and distinct conditions, and therefore his claim for sleep apnea remains on appeal because service connection has not been granted for sleep apnea. The Board also notes that the Veteran was afforded a VA examination in February 2020. The examiner opined that the Veteran’s sleep apnea was not related to active service, to include his exposure to asbestos. However, the examiner did not offer an opinion as to whether the Veteran’s sleep apnea was caused or aggravated by any service-connected disability, to include his now service-connected sarcoidosis. Accordingly, a remand is also necessary to obtain an addendum medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the severity of his service-connected hypertension. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Attention is invited to May 2018 private treatment records indicating a worsening of the Veteran’s hypertension; necessitating the use of 3 medications to control his blood pressure. The examiner should also indicate whether it is at least as likely as not (50 percent probability or greater) that any current disability manifested by chest pain is caused, aggravated by, or is part and parcel of, the service-connected hypertension. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, including reported in-service exposure to hazardous noise. The examiner must review the entire claims file, to include the March 1998 audiometry result conducted for the retirement examination and the May 2018 private evaluation by Dr. P.Y. The examiner is advised that the Veteran is competent to report subjective symptoms of his hearing disability and to describe the extent of the noise exposure he experienced while in service. (Continued on the next page)   3. Obtain an addendum medical opinion to determine the nature and etiology of the Veteran’s sleep apnea. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was (1) caused or (2) aggravated by a service-connected disability, to include, but not limited to sarcoidosis. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, Associate 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.