Citation Nr: 21027788 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-18 217 DATE: May 6, 2021 ORDER Entitlement to service connection for a peripheral vestibular disorder, to include dizziness, vertigo, and labyrinthitis, is granted. Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for erectile dysfunction is granted. Entitlement to special monthly compensation due to loss of use of a creative organ is granted. REMANDED Entitlement to an evaluation in excess of 20 percent disabling for right knee limitation of flexion is remanded. Entitlement to an evaluation in excess of 10 percent disabling for right knee limitation of extension is remanded. FINDINGS OF FACT 1. The Veteran's dizziness began during active service. 2. The preponderance of the evidence is against finding that allergic rhinitis began during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran's erectile dysfunction is aggravated beyond its natural progression by medication to treat his service-connected acquired psychiatric condition. 4. The Veteran's erectile dysfunction is manifested by loss of erectile power. CONCLUSIONS OF LAW 1. The criteria for service connection for dizziness are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for allergic rhinitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for erectile dysfunction as secondary to an acquired psychiatric condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for special monthly compensation based upon loss of use of a creative organ are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1998 to December 2000. The Veteran requested a hearing with a Veterans Law Judge via live videoconference at a local VA office. The hearing was scheduled for July 2019. On the day of the hearing, the VA received a written request from the Veteran to reschedule his hearing. The hearing was rescheduled for September 2019. The Veteran failed to report to the hearing scheduled in September 2019, and has not since requested his hearing be rescheduled. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 1. Entitlement to service connection for a peripheral vestibular disorder, to include dizziness, vertigo, and labyrinthitis The Veteran contends that he suffers from labyrinthitis, dizziness, and vertigo which was incurred in service or is secondary to his service-connected headaches. As an initial matter, the Board notes that the Veteran has separately claimed service connection for dizziness, vertigo, and labyrinthitis. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Labyrinthitis is inflammation of the labyrinth, a part of the inner ear, which may cause hearing loss or vertigo. See Dorland's Illustrated Medical Dictionary 909 (31st ed. 2007). Vertigo and dizziness are both rated under the same diagnostic code. See 38 C.F.R. § 4.87, Diagnostic Code 6204. As labyrinthitis is an underlying peripheral vestibular disorder, and dizziness and vertigo are symptoms of a peripheral vestibular disorder, rated using the same diagnostic code, the award of three separate ratings for these disorders would constitute pyramiding. The Board has consolidated these three claims into the above-captioned single claim. At a VA medical examination conducted shortly after separation in December 2000, the Veteran reported that he started getting dizzy about a year ago with a headache. The headache resolved but he reported still getting dizziness. He reported getting dizzy four to five times per week after a lot of activity, usually lasting approximately 10 minutes. At an August 2015 VA inner ear condition examination, the Veteran reported migraine-associated dizziness, nausea, and room-spinning lasting for 15 minutes and occurring three times per day. The Veteran was diagnosed with migraine-associated dizziness, and the examiner found that the dizziness, vertigo, and labyrinthitis were all related to migraine-associated dizziness. The Board finds this medical opinion is inadequate because it does not describe how the Veteran's migraines caused labyrinthitis, which is a separate underlying pathology which causes dizziness and vertigo. See Dorland's, above. The Veteran has been consistent in his statements that he has experienced dizziness during his active service and since service. The Veteran is competent to report dizziness, because this condition is readily observable by a lay person. The Board finds the Veteran's statements regarding dizziness credible. Under the benefit of the doubt doctrine, when the evidence is in relative equipoise, the law dictates that the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The evidence regarding service connection for dizziness is in equipoise. Accordingly, entitlement to service connection for dizziness is granted. 2. Entitlement to service connection for allergic rhinitis The Veteran contends that his current allergic rhinitis is related to treatment for an upper respiratory condition during service. The Veteran's service treatment records show that he was treated for an upper respiratory infection (URI) during service in February and March of 1998. At a VA medical examination conducted shortly after separation in December 2000, the Veteran made no complaints of allergic rhinitis and the examination report was silent for any rhinitis or sinusitis condition. The Veteran was provided with a VA allergy examination in August 2015. The VA examiner noted diagnoses of allergic rhinitis and chronic sinusitis, with an onset date of 1998 for each condition. The Boards finds that this date of diagnosis must have been based on the Veteran's reports, as there is no medical record of a diagnosis of allergic rhinitis in 1998. Rather, the Veteran's 1998 upper respiratory condition was diagnosed as URI. In January 2016, VA requested that a VA medical examiner review the Veteran's medical history and provide an opinion regarding the etiology of the Veteran's allergic rhinitis condition. Specifically, the examiner was asked to provide an opinion if it is as least as likely as not that the Veteran's allergic rhinitis or sinusitis are due to his upper respiratory infections noted in service. The examiner concluded that the condition was less likely than not incurred in or caused by the in-service treatment for URI. Based on chart reviews, VA examinations, and medical treatment records from government facilities, the examiner found that the Veteran has seasonal allergic rhinitis. The January 2016 examiner acknowledged the in-person VA examination in August 2015, when the Veteran gave a history of allergic rhinitis and chronic sinusitis since 1998. On the August 2015 examination, he had no nasal obstruction, hypertrophied turbinates, or nasal polyps. The Veteran denied any functional impact of this condition. The January 2016 examiner noted that in a report of medical history from June 2000, the Veteran complained of right knee pain, low back pain, bad headaches, and trouble sleeping from back pain. The Veteran denied frequent cold, hay fever, head injury, sinusitis, or any ear, nose, and throat (ENT) trouble. In a December 2000 VA examination, the Veteran complained of dizziness, right knee pain, and low back pain since 1998. He did not report any ENT trouble. An examination of the head, eyes, ears, nose, and throat (HEENT) was unremarkable. The examiner noted the Veteran currently had seasonal allergic rhinosinusitis. The examiner also noted that the Veteran was seen with an upper respiratory tract infection during his active military service. Seasonal allergic rhinitis is usually caused by pollen from trees, grass, and weeds. The examiner therefore concluded that the Veteran's allergic rhinitis is likely than not incurred in or caused by the claimed in-service upper respiratory tract infection. The Board finds that the January 2016 VA medical opinion is the most probative evidence of record as to the etiology of the Veteran's allergic rhinitis. This opinion was based on a thorough review of the Veteran's medical records, consideration of his lay assertions, and supported by a fully articulated rationale with citations to medical literature. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board acknowledges the statements from the Veteran that his current allergic rhinitis is related to his treatment for an upper respiratory condition during service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing back pain either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and an event or injury in military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran contends he experienced allergic rhinitis continuously since discharge from service, these statements are not credible, as they are inconsistent with the medical evidence of record. In sum, the competent evidence of record weighs against the Veteran's assertion that his allergic rhinitis is etiologically related to his active service. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. Entitlement to service connection for erectile dysfunction The Veteran contends that he suffers from erectile dysfunction (ED) related to service. In December 2017, the Veteran submitted a general medical article which suggested that a psychiatric disorder can cause or aggravate erectile dysfunction. In December 2017, a VA examiner opined that the Veteran's ED was at least as likely as not aggravated beyond its natural progression by his service-connected psychiatric disorder. The examiner reasoned that selective serotonin reuptake inhibitors (SSRIs) and antipsychotics are known to have side effects of ED. The examiner cited medical literature and noted that several treatment options exists for patients who experienced sexual dysfunction or decreased libido as a consequent of anti-depressant use. Under the benefit of the doubt doctrine, when the evidence is in relative equipoise, the law dictates that the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The evidence regarding service connection for ED secondary to a service-connected acquired psychiatric condition is in equipoise. Accordingly, entitlement to service connection for ED is granted. 4. Entitlement to special monthly compensation due to loss of use of a creative organ Special monthly compensation (SMC) is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114 (k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC 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). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. Here, the Veteran's ED is manifested by loss of erectile power. SMC based on loss of use of a creative organ was denied by the Regional Office because service connection was not in effect for the ED. However, the Board has concluded that service connection is warranted for the erectile dysfunction, and as such, the Veteran is entitled to SMC based on loss of use of a creative organ. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent disabling for right knee limitation of flexion is remanded. 2. Entitlement to an evaluation in excess of 10 percent disabling for right knee limitation of extension is remanded. The Veteran was last provided with a VA medical examination of the knee in August 2016. An updated examination is warranted to ensure that the record reflects the current severity of the Veteran's right knee disabilities. The Board notes that, effective February 7, 2021, diagnostic codes related to the knee have been updated. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). To ensure that the record reflects the current extent of the disability, an examination, with findings responsive to the pertinent rating criteria, is needed. Therefore, the Veteran should be scheduled for an updated VA examination of his knee disability on remand. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.