Citation Nr: 21072099 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-43 482 DATE: December 2, 2021 ORDER The previously denied claim of entitlement to service connection for sleep apnea is reopened and, to that extent only, the appeal is granted. Entitlement to an effective date prior to April 29, 2013, for the grant of service connection for right testicle disability is denied. Entitlement to an effective date prior to April 29, 2013, for the grant of entitlement to Special Monthly Compensation (SMC) based on loss of use of a creative organ is denied. Entitlement to an initial compensable rating for right testicle disability is denied. Entitlement to a higher level of SMC based on loss of use of a creative organ is denied. REMANDED Entitlement to a compensable rating prior to March 9, 2018, and a rating in excess of 20 percent from March 9, 2018, for hemorrhoids is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a January 2008 rating decision, the issue of entitlement to service connection for sleep apnea was denied finding that the condition had not been clinically diagnosed and that there was no connection to service. 2. Additional evidence received since the January 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea, and raises a reasonable possibility of substantiating the claim. 3. In a claim received by VA on April 29, 2013, the Veteran sought service connection for right testicle inflammation; the Veteran's SMC based on loss of use of a creative organ was granted as part of that claim. 4. Prior to April 29, 2013, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for testicular disability. 5. The Veteran's right testicle disability, status post epididymectomy, manifested with inflammation, orchalgia, hydrocele, and erectile dysfunction, but without deformity of the penis. 6. The Veteran is in receipt of the maximum rate of SMC based on loss of use of a creative organ. CONCLUSIONS OF LAW 1. The Regional Office's January 2008 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for sleep apnea. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. The criteria for an effective date prior to April 29, 2013, for the grant of service connection for testicular disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 4. The criteria for an effective date prior to April 29, 2013, for the grant of SMC based on loss of use of a creative organ have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.400. 5. The criteria for an initial compensable rating for the Veteran's right testicle disability status post epididymectomy with inflammation, orchalgia, hydrocele, and erectile dysfunction have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115b, Diagnostic Codes 7522, 7523, 7524. 6. An increase in SMC based on the loss of use of a creative organ is not warranted as a matter of law. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision. In April 2020, the Board remanded this matter for readjudication of the issues in light of the new evidence following the last supplemental statement of the case. In an October 2020 rating decision, the rating for hemorrhoids was increased to 20 percent, effective March 9, 2018. As the increase does not represent a full grant of the benefit sought, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. The previously denied claim of entitlement to service connection for sleep apnea is reopened and, to that extent only, the appeal is granted. In a January 2008 rating decision, the Regional Office (RO) denied service connection for sleep apnea finding that the condition had not been clinically diagnosed and that there was no connection to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year nor was any new and material evidence received within a year. As a result, the RO's decision became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the January 2008 rating decision includes a March 2016 sleep study diagnosis of obstructive sleep apnea. This evidence was not before adjudicators when the Veteran's claim was last finally denied and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea (current disability) and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. 2. Entitlement to an effective date prior to April 29, 2013 for the grant of service connection for right testicle disability is denied. 3. Entitlement to an effective date prior to April 29, 2013 for the grant of entitlement to SMC based on loss of use of a creative organ is denied. Unless specifically provided otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a "claim" was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In contrast, effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. See 38 C.F.R. § 3.155. The Veteran filed a claim for service connection for testicular disability which was received by VA on April 29, 2013. The Veteran's claims file does not contain any earlier informal or formal claim for service connection for testicular disability. Although the Veteran mentioned his in-service right testicular problem in a September 2007 statement, the in-service problem was reported in support of a hip problem. The Veteran did not report a current testicular disability in the September 2007 statement. The Veteran's September 2007 statement does not constitute a claim for entitlement to service connection for a testicular disability as the Veteran did not request a determination of entitlement to service connection for testicular disability or evidence a belief in entitlement to such a benefit. The Veteran was granted an effective date of April 29, 2013, for his testicular disability, the day of receipt of his claim. The claim was not filed within a year of separation from service. Neither the Veteran nor his attorney has made any argument as to why an earlier effective date is warranted. Therefore, an effective date prior to April 29, 2013, for the grant of service connection for testicular disability is denied. The Veteran's SMC for loss of use of creative organ is based upon his service-connected testicular disability with erectile dysfunction. As such, he cannot receive SMC earlier than the date for which service connection was established for the testicular disability with erectile dysfunction. For the reasons detailed above, the Board has concluded that an effective date earlier than April 29, 2013 is not warranted for the testicular disability. Thus, the claim for an earlier effective date for SMC for loss of use of creative organ must also be denied. 4. Entitlement to an initial compensable rating for right testicle disability is denied. The Veteran seeks an initial compensable rating for his right testicle disability, status post epididymectomy, with inflammation, orchalgia, hydrocele, and erectile dysfunction, currently rated noncompensable under 38 C.F.R. § 4.115b, DC 7522, from April 29, 2013. Erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating have not been met. 38 C.F.R. § 4.31. While DC 7522 requires a "deformity" for a compensable rating and VA has not expressly defined this term, the United States Court of Appeals for Veterans Claims (Court) has found that the ordinary meaning of this word is appropriate, noting that a "deformity" is a "distortion of any part or general disfigurement of the body." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 478 (32d ed. 2012). The Court held that "deformity" under DC 7522 means a distortion of the penis, either internal or external. 38 C.F.R. § 4.115(b), DC 7522. See Williams v. Wilkie, 30 Vet. App. 134 (2018). DC 7523 contemplates impairment due to complete testis atrophy and provides a noncompensable rating for complete atrophy of a single testicle. A 20 percent rating is warranted for complete atrophy of both testicles. DC 7524 provides for a noncompensable rating for removal of one testis, and a 30 percent rating for removal of both. In this case, an October 2013 VA examiner reviewed the Veteran's file and interviewed the Veteran. The VA examiner noted that a genitourinary examination was not required as VA treatment records showed that a complete genital examination was performed by VA urology. The VA examiner noted that the Veteran underwent right epididymectomy around 2004 and that VA treatment records showed a normal left testicle, right hydrocele, and right orchalgia. The Veteran reported erectile dysfunction. The Veteran did not have a voiding dysfunction. The VA examiner noted no impact on work. The Veteran reported that there had been no change since the VA urology examination. The Veteran submitted an October 2018 male reproductive organ conditions disability benefits questionnaire. In the October 2018 DBQ report, the examiner noted the Veteran's erectile dysfunction but no orchiectomy, voiding dysfunction, or history of recurrent symptomatic urinary tract or kidney infections. The Veteran declined examination of his penis and testes and reported normal anatomy. There is no evidence in the claims file, including the Veteran's reports, to support a compensable rating. Based on the lay and medical evidence, the Board finds that an initial compensable rating is not warranted under DC 7522. The evidence of record shows that the Veteran experiences a loss of erectile power, but not penile deformity. The Veteran has not reported penile deformity nor have examiners noted any such deformity. As no penile deformity has been shown, a separate compensable rating under DC 7522 is not warranted at any time during the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.31, 4.115b, DC 7522. The evidence does not show complete atrophy or removal of both testicles. Accordingly, a compensable rating is also not warranted under DCs 7523 or 7524. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A compensable rating for right testicle disability, status post epididymectomy, with inflammation, orchalgia, hydrocele, and erectile dysfunction is not warranted. Accordingly, the claim is denied. Although the Veteran has been assigned a noncompensable rating, he was awarded special monthly compensation for his erectile dysfunction, under the provisions of 38 C.F.R. § 3.350(a), on account of loss of use of a creative organ. 5. Entitlement to a higher level of SMC based on loss of use of a creative organ is denied. The RO awarded SMC under 38 C.F.R. § 1114(k) and 38 C.F.R. § 3.350(a) due to loss of use of a creative organ resulting from the Veteran's service-connected testicular disability. The law does not provide for a higher rate of SMC for loss of use of a creative organ. The amount of SMC for loss of use of a creative organ is a non-variable amount and is set by statute. 38 U.S.C. § 1114(k). Accordingly, the appeal must be denied as a matter of law. The benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea, asserting that his sleep apnea began during service or is secondary to weight gain from his service-connected disabilities. The Veteran reports that his symptoms began during service and that his spouse has always complained about his snoring and gasping for air. The Veteran also reports that his service-connected disabilities limit his ability to exercise and cause fatigue and lack of motivation. The Veteran is service connected for anxiety, lumbar spine, left ankle, left bicep, right bicep, bilateral knee, bilateral hip, hemorrhoid, gastrointestinal, and finger disabilities, among other things. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the United States Court of Appeals for Veterans Claims noted that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis. The Court held that both proximate causation and aggravation should be considered. Secondary service connection on this basis is warranted when: (1) the service-connected disability caused the Veteran to become obese or aggravated the Veteran's obesity; (2) the obesity or aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) the current disability would not have occurred but for the obesity caused or aggravation of obesity by the service-connected disability. In September 2018 and October 2018, a private examiner opined that the Veteran's weight gain was due to his service-connected disabilities, that his sleep apnea was secondary to such weight gain, and that without the weight gain his sleep apnea would not have occurred. The examiner noted that the Veteran was 168 pounds at entrance to service, 220 pounds at separation from service, and currently 270 pounds. The examiner explained that the Veteran's weight gain and obesity developed after his mental health stressors, mental health medications, and musculoskeletal injuries. The examiner also explained that the Veteran's sleep apnea diagnosis was after his mental health diagnosis and treatment with medications known to promote weight gain. However, the Veteran's treatment records show that the Veteran was diagnosed with sleep apnea in 2016 but not diagnosed with a mental health disorder until 2017 and not prescribed the referenced medications for such disorder until 2018. VA treatment records show that the Veteran weighed 268 pounds in January 2018. Accordingly, the opinion relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). A November 2018 VA examiner opined that the Veteran's sleep apnea is less likely than not due to his service-connected psychiatric disability. The VA examiner explained that the Veteran's obesity is the single most predictive variable for developing sleep apnea. The VA examiner noted that literature does not support strong evidence that a mental health condition causes sleep apnea. The VA examiner also explained that the Veteran's weight gain began years prior to his mental health diagnosis and medication. The VA examiner explained that the Veteran's weight gain occurred prior to most service-connected conditions. However, the Veteran's lumbar spine, left ankle, left and right biceps, bilateral knee, and finger disabilities were service connected upon separation from service in 2001 and are not adequately addressed by the November 2018 VA examiner. An October 2020 VA examiner opined that the Veteran's sleep apnea is less likely than not due to or aggravated by his service-connected disabilities. The examiner explained that the disabilities are different conditions from the sleep apnea with no patho-physiological correlation. However, the October 2020 VA examiner did not address the Veteran's report that his service-connected disabilities limit his movement and therefore led to his obesity. In light of the above, remand is warranted to obtain additional VA medical opinion regarding whether the Veteran's sleep apnea had an onset in service, is related to service, or is secondary to his service-connected disabilities via a link through obesity. 2. Entitlement to a compensable rating prior to March 9, 2018, and a rating in excess of 20 percent from March 9, 2018, for hemorrhoids is remanded. In April 2020, the Board remanded this matter for RO consideration of new evidence received since the last statement of the case in August 2017. The Board instructed the RO to review the additional evidence and readjudicate the claims. In October 2020, the RO increased the Veteran's rating for hemorrhoids to 20 percent disabling, effective March 9, 2018. The RO noted that this was a full grant of the benefit sought on appeal as the rating is the highest schedular rating for hemorrhoids. However, the 20 percent rating was not granted throughout the appeal period and it does not appear that the RO readjudicated the Veteran's claim for a compensable rating prior to March 9, 2018. The December 2020 supplemental statement of the case did not include the issue of a compensable rating for hemorrhoids prior to March 9, 2018. Accordingly, this claim is remanded for readjudication in accordance with the April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). While this matter is on remand, outstanding private and VA treatment records should be obtained, including VA treatment records from April 2020 to the present. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records, to include VA treatment records from April 2020 to the present. 3. After outstanding records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not that the Veteran's sleep apnea had an onset in service or is otherwise related to service. The examiner should also opine regarding whether it is at least as likely as not that the Veteran's service-connected disabilities (including his musculoskeletal disabilities) caused the Veteran to become obese or aggravated the Veteran's obesity. If so, the examiner should opine whether it is at least as likely as not that the obesity or aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current obstructive sleep apnea disability. If so, the examiner should opine whether it is at least as likely as not that the current obstructive sleep apnea disability would not have occurred but for the obesity caused or aggravation of obesity by the service-connected disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner must specifically address the Veteran's reports that his symptoms began during service, that his spouse has always complained about his snoring and gasping for air, and that his service-connected disabilities limit his ability to exercise and cause fatigue and lack of motivation, and the September 2018 private opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 4. After the above development, and any other development deemed necessary, readjudicate the claims, to include consideration of all evidence following the August 2017 statement of the case. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amy 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.