Citation Nr: 21013558 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-09 000 DATE: March 9, 2021 ORDER Service connection for residuals of gonorrhea is denied. An initial compensable rating for left varicocele for the period on appeal is denied. Special monthly compensation based on loss of use of a creative organ is denied. REMANDED Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for bilateral peripheral arterial insufficiency of the legs is remanded. FINDINGS OF FACT 1. The Veteran did not have residuals of gonorrhea, including erectile dysfunction. 2. For the period on appeal, the Veteran did not have atrophy of both testicles, varicocele in the right testicle, or the removal of either testicle. 3. The Veteran’s left varicocele did not result in the Veteran’s erectile dysfunction; and the Veteran’s left varicocele did not manifest in a reduction of one-third or less of the paired right testicle, a reduction of one-half of the paired right testicle with an alteration of consistency so that the testicle was considerably harder or softer than the right testicle, or the absence of spermatozoa. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals for gonorrhea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial compensable rating for left varicocele for the period on appeal are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.115b, Diagnostic Code 7523. 3. The criteria for special monthly compensation based on loss of use of a creative organ are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to November 1977. Unfortunately, the Veteran died in December 2018. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in July 201 and October 2020, where it was remanded for additional development. The matter now returns to the Board for adjudication. The Veteran filed a service connection claim for bilateral hands, bilateral peripheral artery insufficiency of the legs, claimed as leg cramps, and residuals of gonorrhea. The Veteran sought an increased initial rating for his service-connected left varicocele testicle and special monthly compensation for loss of a creative organ. The Veteran asserted that the prior RO rating decisions committed clear and unmistakable error in denying him service connection or an increased rating. This standard is used to collaterally challenge previous, closed decisions, and is not applicable when the issues were properly appealed, as they were here. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). Service Connection 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. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran sought service connection for residuals of gonorrhea. The Veteran’s service treatment records document an in-service diagnosis in 1977. The Veteran underwent a March 2013 VA examination. During the examination, the Veteran stated that the condition cleared up after about two weeks and denied any subsequent problems. An August 2020 VA medical opinion was prepared. The examiner concluded that there was no objective medical evidence to prove that the Veteran had residuals of gonorrhea. A September 2020 VA medical opinion was prepared. The examiner concluded that because the records showed that the Veteran’s gonorrhea resolved after two treatments in approximately two weeks in 1977, the Veteran showed no evidence of residuals of the disease for years afterwards, and because the Veteran denied in the March 2013 VA examination having any residuals, it was therefore less likely than not that the Veteran experienced residuals from gonorrhea. The examiner also concluded that because the Veteran only began experiencing erectile dysfunction in 2010, for the same reason that the Veteran did not show any signs of a disability between 1977 and 2010, it was less likely than not that the erectile dysfunction was a residual of gonorrhea. When considering the value of medical opinion evidence, the probative value of the opinion 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 Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the September 2020 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, 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 gonorrhea did not result in any residuals and why the Veteran’s erectile dysfunction is not a residual of gonorrhea. Furthermore, there is no competing medical opinion of record. The Board thus finds that the September 2020 opinion is dispositive of the issue at hand. The Board assigns the opinion substantial probative weight. The Board acknowledges that the Veteran asserted his gonorrhea actually caused many of his claimed disabilities. With due respect to the Veteran, the record does not show that he is qualified to make medical conclusions about whether his gonorrhea was medically responsible for any particular disability, or the disabilities for which he is claiming service connection. The question is medically complex, and beyond mere lay observations of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, there is no medical evidence otherwise in the file to suggest that the Veterans gonorrhea caused or aggravated any of the Veteran’s medical conditions. The Veteran asserted that his claimed disabilities should be evaluated as chronic under 38 C.F.R. § 3.309. Residuals of gonorrhea are not on the list of chronic disabilities under § 3.309. The Board finds that the preponderance of the evidence is against finding that the Veteran’s in-service gonorrhea had any residuals, including erectile dysfunction. 38 C.F.R. § 3.303. The benefit of the doubt rule therefore does not apply, and the Board concludes that the entitlement to a service connection for residuals of gonorrhea is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.   The Veteran was service connected for left varicocele, Diagnostic Code 7599-7523, rated by analogy as complete atrophy of the testis, currently at 0% evaluation. Under 38 C.F.R. § 1.115b, Diagnostic Code 7523, complete atrophy of the testis, a 0 percent rating is warranted if only one testicle is atrophied, and a 20 percent rating is warranted where both testicles are atrophied. There is no evidence in the record that the Veteran’s right testicle had varicocele, or was atrophied in any way. Accordingly, he does not meet the criteria for a rating in excess of 0 percent under Diagnostic Code 7523 for the period on appeal. The Veteran asserted that his varicocele should be rated under Diagnostic Code 7524, arguing that it was the better analogous code. Diagnostic Code 7524 is the rating criteria for removed testicles. There is no evidence that the Veteran’s testicles were ever removed. As such, rating the Veteran under Diagnostic Code 7524 is not appropriate. The Veteran asserted that the January 2015 Statement of the Case mischaracterized his condition as a “vasicocele” condition, but the January 2015 Statement of the Case clearly states that the Veteran was service connected for a left “varicocele.” Special Monthly Compensation Under 38 U.S.C. § 1114, and its implementing regulation, 38 C.F.R. § 3.350, a veteran may be entitled to special monthly compensation when a service-connected disability manifests in such a way that the regular rating criteria fails to adequately compensate the veteran. Here, the Veteran sought compensation under 38 U.S.C. § 1114(k), also known as SMC(k), which compensates a veteran for, in relevant part, the loss of use of a creative organ. SMC(k) 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).   Erectile Dysfunction The Veteran was diagnosed with erectile dysfunction in 2010. Erectile dysfunction is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. A September 2020 VA opinion was prepared. The examiner concluded that it was less likely than not that the Veteran’s left varicocele caused the Veteran’s erectile dysfunction. The examiner reasoned that the medical literature revealed that varicocele was not a well-established etiology of erectile dysfunction, and that it was more likely secondary to diabetes, which was well established to cause erectile dysfunction. The opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, 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 service-connected left varicocele did not cause the Veteran’s erectile dysfunction. See Guerrieri, 4 Vet. App. at 470-71. Furthermore, there is no competing medical opinion of record. The Board thus finds that the September 2020 opinion is dispositive of the issue at hand. The Board assigns the opinion substantial probative weight. The Board finds that it is less likely than not that the Veteran’s erectile dysfunction was the result of a service-connected disability. Acquired Absence of Testicles Loss of creative organ will also be shown by acquired absence of one or both testicles (other than undescended testicles). 38 C.F.R. § 3.350(a)(1)(i). Loss of use of one testicle will be established when one of the following is shown: (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle; (b) the diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle, and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; (c) when a biopsy recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa. Id. After reviewing the record, the Board finds that the preponderance of the evidence is against finding that the Veteran met any of the three criteria. There is no evidence that the Veteran’s left testicle had shrunk to any measurable amount compared to the right testicle, and not by one-half or less. Nor is there evidence that the testicle’s consistency was considerably harder or softer than the right testicle. Nor is there evidence that the Veteran did not have spermatozoa. The Board acknowledges that the Veteran’s left varicocele was described as a hard mass. The left varicocele is not the entire testicle, nor has it been described as affecting the entire testicle, and there is no evidence that the hard consistency extended to the entire testicle. The preponderance of the evidence shows that the Veteran did not meet any of the three criteria for an acquired absence of one testicle. Conclusion The preponderance of the evidence shows that the Veteran’s service-connected left varicocele did not result in erectile dysfunction, and that the Veteran did not meet the criteria under § 3.350(a)(1)(i) for loss of use of a testicle. 38 U.S.C. § 1114 (k), 38 C.F.R. § 3.350 (a). The benefit of the doubt rule therefore does not apply, and the Board concludes that the entitlement to special monthly compensation for loss of use of a creative organ does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Unfortunately, the following issues must be remanded. Bilateral Hand Disability The Veteran sought service connection for bilateral hand disabilities. In a September 2006 private medical opinion, the Veteran was diagnosed with, among other things, de Quervian’s Tensynovitis, which the private opinion stated was at least partly was responsible for the Veteran’s bilateral hand pain. The Veteran underwent a March 2013 VA examination. The examiner concluded that the Veteran had acute right tendonitis, and a left small finger superficial laceration and osteochondroma at the index finger. An August 2020 VA medical opinion was prepared. The examiner opined that because there was no objective confirmation by a recent NCV/EMG, and that carpal tunnel syndrome requires such confirmation, the Veteran did not have carpal tunnel syndrome. A September 2020 VA medical opinion was prepared. The examiner opined that because the Veteran’s service treatment records did not reflect complaint or treatment for carpal tunnel syndrome or other hand-related disabilities, it was therefore less likely than not that the Veteran’s carpal tunnel syndrome was related to service. Unfortunately, the Board concludes that none of the medical opinions of record are adequate or sufficient to resolve the issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, none of the VA medical opinions discusses the Veteran’s diagnosis of de Quervian’s Tensynovitis, which the September 2006 private medical opinion diagnosed and indicated was responsible for the Veteran’s hand pain. A medical opinion must consider all the relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Second, the September 2020 VA medical opinion bases its conclusion that there is no nexus between whatever hand disability the Veteran does have with service on the grounds that there were no complaints in the Veteran’s service records; a review of the Veteran’s records show that the Veteran was treated multiple times for hand pain. An opinion based on inaccurate factual premises is not entitled to weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Although the August 2020 and September 2020 VA medical opinions addressed the question of whether the Veteran had carpal tunnel syndrome, and whether it was related to service, neither opinion addressed whether the Veteran had any possible bilateral hand disability. Given that the March 2013 VA examination diagnosed the Veteran with right acute tendonitis, and it does not appear that any VA examination since then has specifically opined as to whether or not the right acute tendonitis was related to service, the Board finds that additional development is necessary. The evidence of record being insufficient to decide the issue, the Board will remand again so that an appropriate clinician can opine as to whether the Veteran had a bilateral hand disability during the period on appeal, the nature of such disability, and the etiology of such disability, to specifically include, but not limited to, the prior diagnoses of acute right tendonitis, de Quervian’s Tensynovitis, and the Veteran’s in-service treatment for hand problems. Left Hand Osteochondroma In its July 2018 remand, the Board separately directed the RO to obtain an addendum opinion about whether the Veteran’s left hand osteochondroma was a was a congenital disease or defect and, if so, whether there was a superimposed disease or disability that resulted in additional disability. A review of the record shows that the September 2020 VA examination shows that this opinion was not obtained. A veteran has the right to substantial compliance with a remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board will remand again to obtain the opinion.   Bilateral Peripheral Artery Insufficiency In its October 2020 decision, the Board, on remand from the U.S. Court of Appeals for Veterans Claims, found that entitlement to service connection for bilateral ankle disability was inextricably intertwined with entitlement to service connection for the bilateral artery disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The record shows that development for the bilateral ankle disability is still in progress and, as such, the Board will remand entitlement to bilateral arteries until the issues can be adjudicated. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician as to the following questions: (a) The examiner should clearly identify all current left and/or right hand disorders, to include, but is not limited to, the previously considered right acute tendonitis, left small finger superficial laceration and osteochondroma, and bilateral de Quervian’s Tensynovitis. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. (b) For each identified disability, is the disability at least as likely as not related to service, to include the documented complaints and treatment for hand pain in the Veteran’s service treatment records? 2. Obtain an addendum opinion from an appropriate clinician as to the following questions: (a) For the diagnosed left hand osteochondroma, the examiner should explain whether it was a congenital or developmental defect, a congenital or developmental disease, or a disorder not of congenital or developmental origin. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (b) For each disorder that is determined to be a congenital or developmental defect, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (c) For each disorder that is determined to be a congenital or developmental disease, opine as to whether there is clear and unmistakable (undebatable) evidence that the disorder both (i) preexisted the Veteran’s entry into active service, and (ii) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran’s active service. (d) For each disorder that is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran’s active service, including any symptomatology therein. 3. Once development of the claim for a bilateral ankle disability is complete, readjudicate the inextricably intertwined issue of bilateral peripheral artery insufficiency. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael D. Wagner, 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.