Citation Nr: 21070016 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-11 815 DATE: November 22, 2021 ORDER Service connection for chronic testicle pain, to include as secondary to service-connected prostate cancer, is granted. Entitlement to a finding of total disability based on individual unemployability (TDIU) based on service-connected disabilities is granted. Entitlement to special monthly compensation (SMC) based on statutory housebound status, from October 16, 2012, to January 10, 2017, is granted. FINDINGS OF FACT 1. Chronic testicle pain is at least as likely as not caused by radiation therapy for treatment of service-connected prostate cancer. 2. Prior to January 10, 2017, the Veteran's service-connected prostate cancer alone is shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. 3. Since April 18, 2017, the Veteran's service-connected disabilities, in combination, are of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. 4. From October 16, 2012, to January 10, 2017, there is a single service-connected disability rated as 100 percent disabling, plus additional service-connected disabilities independently rated a combined 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for service connection of chronic testicle pain are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.7, 4.15, 4.16. 3. From October 16, 2012, to January 10, 2017, the criteria for entitlement to SMC based on statutory housebound status are met . 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350(i). 4. Since April 18, 2017, the criteria for entitlement to SMC based on statutory housebound status are not met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1960 August 1968, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantry Badge. He timely appealed these matters from an October 2013 rating decision. The Board of Veterans' Appeals (Board) remanded the matters for additional development in September 2015, in June 2017, in February 2018, and in November 2019. In a September 2020 decision, the Board denied the Veteran's claim for service connection for a testicle disorder and denied entitlement to TDIU benefits. The Veteran appealed the September 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Joint Motion for Remand, the parties moved to vacate the Board decision that denied service connection for a testicle disorder and denied entitlement to TDIU benefits. The Court granted the motion. Thereafter, the appeal was returned to the Board. The Board has, based on the award of TDIU below, inferred a claim of entitlement to SMC for the stages addressed. Akles v. Derwinski, 1 Vet. App 118 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). The benefit has already been awarded for the period from January 10, 2017, to April 18, 2017. In this case, all available records identified by the Veteran as relating to claims decided below were obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran's appeal. 38 U.S.C. § 5103A(a)(2). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). For Veterans exposed to tactical herbicides, service connection may be presumed for certain listed diseases, including chloracne or other acneform disease consistent with chloracne. Exposure is presumed for those who served in Vietnam from January 1962 to May 1975. 38 C.F.R. §§ 3.307, 3.309. This includes Veterans who served in the 12-nautical-mile territorial sea of the Republic of Vietnam. 38 U.S.C. § 1116A. VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: Testicular disorder is not listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). That notwithstanding, the Veteran may still establish service connection on a direct basis by showing that the claimed disability is at least as likely as not causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In this case, the Veteran was presumed sound at service entry. Clinical evaluation at entry in April 1960 was normal, and no disability was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran's service treatment records do not reflect any findings or complaints of testicle pain, nor is there evidence of trauma or injury to the Veteran's testicles. Clinical evaluation of the Veteran's genitourinary system was normal at his separation examinations from active service in March 1962 and in May 1968. The Veteran has not since reported in the context of his claim that he experienced any testicle pain in service. Here, the in-service element has not been met. Nor is there any evidence or information linking active service to the currently diagnosed testicle pain. While the Veteran may fervently believe in such a connection, as a layperson he lacks the competence to render a nexus opinion on such a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Here, post-service records show the onset of disability well after service. The first credible showing of pertinent disability is not within a period of active service, and no presumptive provisions are applicable. The Veteran underwent a radical prostatectomy in February 2007. Biochemical PSA recurrence was noted, and the Veteran began salvage external beam radiation therapy in February 2008. Examination in April 2010 revealed that each testicle was well-developed, no mass, no atrophy, no tenderness, normal in size, and consistency, and without evidence of varicocele; epididymis was within normal limits. A VA examiner in May 2013 noted that the Veteran's prostate cancer was in remission, and that radiation cystitis was a residual condition or complication due to treatment for prostate cancer. Given history of radiation cystitis, an ultrasound was conducted in July 2013 and revealed a right testicular mass and epidydimal cyst, noted as "not currently painful enough to require surgery." In May 2016, the Veteran reported having testicle pain ever since the radiation therapy for treatment of prostate cancer. A VA examiner in September 2016 noted that pain in testicles, as reported by Veteran, was a residual condition or complication due to treatment for prostate cancer. In November 2016, the Veteran reported suffering from testicle pain and being prescribed pain medication. He also reported being told by doctors that his testicle pain was possibly due to radiation treatment for prostate cancer. In this regard, the Veteran is competent to report what he was told by doctors. VA records, dated in October 2018, note that the Veteran's testicle pain was still bothersome; and that it may be due to radiation, or it may be due to known hydroceles and cysts. A VA examiner in November 2018 found no testicle disorder and no evidence of pain on examination. In December 2019, a VA examiner opined that the Veteran's current diagnosis of bilateral epididymal cyst and bilateral hydrocele were less likely than not caused by treatment for prostate cancer. The examiner reasoned that such conditions occurred spontaneously in men and more frequently in men over age 40. Nor was there a relationship between such conditions and surgical treatment for prostate cancer. Also in December 2019, another VA examiner explained that there was no objective evidence that a testicle disorder was aggravated beyond natural progression; and that prostate cancer, status-post prostatectomy, is an unlikely factor to influence testicle disorder. Another VA examiner in December 2019 explained that the Veteran has a diagnosis of bilateral epididymal cyst and bilateral hydrocele, which was manifested by pain. In this case, there are conflicting medical opinions. The Veteran's chronic testicle pain has been attributed both to his undergoing radiation treatment of prostate cancer and to currently diagnosed bilateral epididymal cyst and bilateral hydrocele. Radiation cystitis already was identified as a residual condition or complication due to treatment for prostate cancer. Moreover, a VA examiner in September 2016 also identified pain in testicles, as reported by Veteran, as a residual condition or complication due to treatment for prostate cancer. At worst, the record is in equipoise. The Veteran's chronic testicle pain is due, at least in part, to the radiation therapy for treatment of service-connected prostate cancer. Accordingly, service connection on a secondary basis is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16 (a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). A finding of entitlement to TDIU is dependent upon consideration of the impact of each of the Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. §§ 4.16. Age is not a factor. 38 C.F.R. § 4.19. Throughout the appeal period, from October 16, 2012, the Veteran met the basic schedular eligibility criteria for TDIU; even without consideration of the above grant, he had a combined 80 percent rating. Each condition related to service-connected prostate cancer counts as a single disability for TDIU purposes under 38 C.F.R. § 4.16(a). Service connection is in effect for prostate cancer status-post radical prostatectomy with erectile dysfunction, rated as 60 percent disabling from October 16, 2012; for status-post total right knee arthroplasty, rated as 60 percent disabling effective October 16, 2012; for major depressive disorder associated with prostate cancer, rated as 50 percent from December 7, 2016, to February 7, 2019, and as 70 percent thereafter; for chronic testicle pain, which is yet to be rated; and for scars, rated as 0 percent (noncompensable) disabling. Regarding the period of temporary total disability, generally, a request for TDIU is moot where a 100 percent schedular rating was awarded for the same period. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). While still factually unemployable, where the Veteran is also a schedular total disability or is entitled to a temporary total disability, actual payment of TDIU would be duplicative. Here, for the period from January 10, 2017, to April 18, 2017, the Veteran is in receipt of a temporary total disability rating under 38 C.F.R. § 4.30, for convalescence requiring surgery, and so the question of TDIU is moot for this period. In October 2015, the Veteran reported that he had worked 40 hours weekly as a branch chief for a defense agency from 1969 to 1994. He reportedly did not leave his last job due to disability. He last worked full-time in October 1994; he reportedly became too disabled to work in February 2007 due to residuals of prostate cancer. The Veteran had completed four years of high school; he had no other education or training. October 16, 2012, to January 10, 2017 Each examiner has noted that residuals of prostate cancer included urine incontinence, which required the Veteran to wear multiple pads daily, to change clothes, and to be always nearby a restroom. This was stressful and impaired the Veteran's physical activity. He could not perform physical labor, and even as a supervisor, he was limited in his mobility and availability due to the incontinence. Such unreasonably interfered with his ability to secure and follow substantially gainful employment. Entitlement to TDIU is warranted for the period prior to January 10, 2017. Further, TDIU for this period is based solely on the impairment due to prostate cancer residuals, a single disability under Code 7528. Since April 18, 2017 However, when the Veteran's period of temporary total disability under 38 C.F.R. § 4.30 ended on April 18, 2017, the major functional problem due to the prostate cancer and incontinence were resolved. The Veteran had an artificial urinary sphincter implanted which allowed him to eliminate leakage. He continued to wear absorbent pads for security and confidence, and against the possibility of a malfunction. The Veteran in fact reported in July 2017 that his incontinence was 100 percent better, and he only had a small leak when his sphincter control would infrequently get caught between his legs. Accordingly, while the ability to perform moderate or heavy physical labor was still impaired due to prostate cancer residuals, his mobility and capacity to perform more sedentary occupational tasks, such as supervising and directing, even on-site, were effectively restored with regard to prostate cancer. Nevertheless, the Veteran remained unemployable after April 18, 2017. His knee disability continued to impact his physical abilities, to include even less strenuous tasks. The impact of prostate cancer residuals is discussed above. The Veteran's service-connected major depression, rated 50 percent disabling prior to February 7, 2019, impacted his ability to work with others and to adapt to stressful situations. Medication helped, but he still worried about smelling of urine and accidents, and how that affected his interactions. Such made him ineffective in a supervisory or management role. His service-connected conditions, in combination, rendered him incapable of obtaining or retaining substantially gainful employment. Entitlement to TDIU is warranted for the period since April 18, 2017. SMC based on Statutory Housebound Status SMC at the housebound rate under subsection (s) is awarded where the Veteran has a service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound due to such service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). TDIU based on a single disability is considered qualifying to establish eligibility. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). TDIU has been awarded due solely to residuals of prostate cancer alone from October 16, 2012, to January 10, 2017. The combined rating for service-connected disabilities other than residuals of prostate cancer is at least 60 percent; the right knee alone is rated 60 percent disabling from October 16, 2012. Accordingly, statutory housebound criteria are met, based on the TDIU award for the Veteran's service-connected residuals of prostate cancer and the presence of additional service-connected disabilities evaluated as 60 percent disabling or greater for the period of October 16, 2012, to January 10, 2017. Since April 18, 2017, however, the Veteran lacks a single service-connected disability rated 100 percent disabling. TDIU is based on the combined impact of his service-connected conditions, and no single disability is rated totally disabling on its own. The Board recognizes that the prostate cancer residuals and depression may be considered a "single disability" under 38 C.F.R. § 4.16(a) for purposes of establishing schedular entitlement to TDIU, but the Court in Bradley v. Peake, 22 Vet. App. 280 (2008) expressly limited that provision to that purpose; the two related conditions may not be considered a single disability for SMC purposes. For the period from January 10, 2017, to April 18, 2017, for which a temporary total evaluation under 38 C.F.R. § 4.30 is awarded, SMC based on statutory housebound status has already been awarded by the AOJ. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.