Citation Nr: 21040016 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-10 658 DATE: July 2, 2021 ORDER Entitlement to service connection for depression is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to eligibility for Department of Veterans Affairs (VA) medical treatment due to active psychosis within two years of separation from service is denied. The reduction in evaluation of allergic rhinitis from 30 percent disabling to 10 percent disabling, effective January 6, 2015, was not proper and is restored, and the appeal is granted. Entitlement to an increased rating for tension headaches, rated as 0 percent disabling prior to January 19, 2018, is denied. Entitlement to an increased rating of 50 percent for tension headaches, effective January 19, 2018, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 10 percent for testicular microlithiasis with Peyronie's disease and voiding dysfunction is dismissed. Entitlement to an increased rating higher than 0 percent for residual scarring of the left shoulder is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. Entitlement to an increased rating higher than 0 percent for residual scarring of left inguinal hernia is dismissed. FINDINGS OF FACT 1. The Veteran's depression is proximately due to chronic pain from his service-connected headaches, chronic radiculopathy, inguinal hernia, bilateral varicoceles, low back disability, knee disability, and bilateral foot pain. 2. The Veteran's sleep apnea is aggravated beyond its natural progression by his service-connected allergic rhinitis. 3. The Veteran served during the Persian Gulf War; he did not develop an active psychosis during active military service from July 2005 to March 2012 or within two years of separation from active military service. 4. The rating reduction for the Veteran's assigned allergic rhinitis rating was not carried out in accordance with applicable procedures and is void ab initio. 5. Effective prior to January 19, 2018, the Veteran's headaches involved less frequent attacks than the criteria required for a compensable rating; however, effective January 19, 2018, the Veteran experienced very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 6. In January 2021, prior to the promulgation of a decision in the appeal, the Veteran testified at a Board of Veterans' Appeals (Board) hearing that he wanted to withdraw his claim for entitlement to an increased rating for testicular microlithiasis with Peyronie's disease and voiding dysfunction, increased rating for residual scarring of the left shoulder, entitlement to a TDIU, and entitlement to an increased rating for residual scarring of left inguinal hernia. CONCLUSIONS OF LAW 1. The criteria for service connection for depression are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria have not been met for service connection for a psychosis for the purpose of establishing eligibility for VA treatment only under the provisions of 38 U.S.C. § 1702. 38 U.S.C. §§ 1702, 5107; 38 C.F.R. §§ 3.102, 3.384. 4. The criteria for restoration of a 30 percent rating for allergic rhinitis effective January 6, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e). 5. The criteria for a disability rating in excess of 0 percent for tension headaches are not met, effective prior to January 19, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 6. The criteria for a disability rating of 50 percent for tension headaches are met, effective January 19, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 7. The criteria for withdrawal of entitlement to an increased rating higher than 10 percent for testicular microlithiasis with Peyronie's disease and voiding dysfunction by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of entitlement to an increased rating higher than 0 percent for residual scarring of the left shoulder by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of entitlement to a TDIU by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of entitlement to an increased rating higher than 0 percent for residual scarring of left inguinal hernia by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 2005 to March 2012. This matter comes to the Board from a VA Agency of Original Jurisdiction (AOJ) decision dated in February 2015. The Veteran testified at a virtual Board hearing in January 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. REFERRED The issue of service connection for sinusitis was raised in a December 2019 medical opinion and is referred to the AOJ for adjudication. Service Connection 1. Entitlement to service connection for depression The Veteran contends that his depression is secondary to his service-connected disabilities, including his testicular disability and inguinal hernia. See, e.g., January 2021 Board hearing transcript, pp. 3-4. A June 2015 VA treatment record shows a diagnosis of major depressive disorder. Thus, a present disability is established. An April 2018 private medical opinion concluded that it is at least as likely as not that the Veteran's depression was caused by his groin testicular condition, based on review of the Veteran's previous treatment history. A December 2019 private medical opinion also found that the Veteran's depression and anxiety disorder are secondary to his chronic pain and headaches. It was noted that the chronic pain condition started because of headaches, chronic radiculopathy, inguinal hernia, bilateral varicoceles, low back, knee, and bilateral foot pain. The examiner noted the Veteran's diagnoses in June 2015 of generalized anxiety disorder and chronic depression and found that the Veteran's anxiety and depression were secondary to his chronic pain and chronic headaches, which were due to military service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current depression is proximately due to his service-connected headaches, radiculopathy, inguinal hernia, testicular disorder, low back pain, knee pain, and bilateral foot pain. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for depression is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. 3.310. 2. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea started in the military and was later aggravated by his service-connected allergic rhinitis. See, e.g., January 2021 Board hearing transcript, pp. 20-21. A September 2014 private treatment record shows a diagnosis of sleep apnea. The service treatment records do not show a diagnosis of sleep apnea but note a diagnosis of allergic rhinitis and that the Veteran's nasal septum was slightly crooked. See February 2008 service treatment record. The service treatment records also note sleep disturbances in January 2012. A December 2019 Disability Benefits Questionnaire (DBQ) notes that the Veteran had multiple sleep and snoring issues on active duty. He also had fatigue and issues breathing at night. The examiner found that it was more likely than not that the Veteran's sleep apnea was aggravated by his deviated septum, enlarged turbinates, large tonsils, and his service-connected allergic rhinitis. The examiner noted that the Veteran was diagnosed with deviated septum on active duty in April 2008. The examiner also noted that the Veteran's large tonsil were secondary to his rhinitis and could cause difficulty breathing or swallowing and sometimes recurring ear or sinus infections or obstructive sleep apnea. In January 2012, the Veteran was treated for snoring and diagnosed with sleep disturbances. It was the examiner's professional opinion that the Veteran's sleep apnea was aggravated and caused by his allergic rhinitis. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sleep apnea is aggravated beyond its natural progression by his service-connected allergic rhinitis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. Increased Rating 3. Entitlement to eligibility for VA medical treatment due to active psychosis within two years of separation from service Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam Era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. The term "psychosis" is defined in 38 C.F.R. § 3.384 as any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, (DSM-5): (a) brief psychotic disorder; (b) delusional disorder; (c) psychotic disorder due to general medical condition; (d) other specified schizophrenia spectrum and other psychotic disorder; (e) schizoaffective disorder; (f) schizophrenia; (g) schizophreniform disorder; and (h) substance/medication induced psychotic disorder. In January 2008, 38 U.S.C. § 1702 (b) was added via Public Law 110-181 and provides that any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service or before the end of the two-year period beginning on the last day of the Persian Gulf War. The Veteran served in the Persian Gulf War. Thus, 38 U.S.C. § 1702 (b) is applicable here. The record does not show that the Veteran developed an active mental illness within two years of discharge in March 2012. The service treatment records note that the Veteran had some sleep disturbances but are negative for a mental illness. While a July 2012 VA treatment record notes a positive depression screen, a January 2015 VA examination report found that the Veteran did not have a diagnosis of depression. The Veteran also does not meet the criteria for active psychosis under 38 U.S.C. § 1702 (a). That is, the medical and lay evidence of record does not establish that he developed an active psychosis during active military service or within two years of separation from active military service. The Veteran's service treatment records and post-service VA treatment records do not reveal a diagnosis of a psychosis. A May 2015 VA treatment record notes that the Veteran had perceptual disturbances and had a diagnosis of major depressive disorder. However, the examiner found that it did not appear that the Veteran had a primary psychotic disorder. It was determined that the Veteran's hallucinations were more likely due to sleep hallucinations due to partially treated obstructive sleep apnea. There is no medical opinion of record finding that the Veteran had an active psychosis as defined under 38 C.F.R. § 3.384 during service or within two years of service. In making this determination, the Board acknowledges that service connection has been granted in the present Board decision for depression secondary to his service-connected disabilities. However, he is not shown as having incurred this disability in service. Also, depression is not listed as a psychosis under 38 C.F.R. § 3.384. Thus, in the present case, since the Veteran has no diagnosis of an active psychosis during service or within two years of service, he is not eligible for VA treatment under the specific provisions of 38 U.S.C. § 1702. Moreover, without medical training or expertise, the Veteran is not competent to diagnose a psychosis, either during active service or within two years of discharge from active service. The Veteran is competent to describe his psychiatric symptoms at any time or convey what a medical professional stated to him, but he is not competent to diagnose a psychosis, as this requires medical training or expertise. See 38 C.F.R. § 3.159 (a)(1)-(2); Kahana, 24 Vet. App. at 438; Jandreau, 492 F.3d at 1377. Accordingly, the preponderance of the evidence is against eligibility for VA treatment for psychosis or mental illness under 38 U.S.C. § 1702. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an increased rating higher than 30 percent for allergic rhinitis, effective prior to January 6, 2015, and 10 percent, thereafter In a February 2015 rating decision, the Veteran's rating for his allergic rhinitis was reduced from 30 percent to 10 percent. The Veteran contends that this reduction was not proper as he was not provided due process. See May 2015 statement with notice of disagreement. As an initial matter, where a reduction in an evaluation is warranted, and results in a reduction of overall compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. Moreover, the Veteran must be notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level and that he has a right to a hearing to present evidence if he wishes. 38 C.F.R. § 3.105 (e). However, VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). The February 2015 rating decision noted that the provisions of 38 C.F.R. § 3.105 (e) were not applicable because the Veteran's overall compensation remained at 70 percent. However, the Board finds that this is incorrect. Indeed, at the time of the effective date of the reduction, the Veteran's overall compensation was 80 percent as the result of his service-connected Peyronie's disease with voiding dysfunction at 40 percent, effective July 11, 2014; erectile dysfunction at 20 percent, effective March 29, 2012 to July 11, 2014; and left shoulder disability at 10 percent, right shoulder disability at 10 percent, lumbar spine disability at 10 percent, tinnitus at 10 percent, dermatitis at 10 percent, and allergic rhinitis at 30 percent, effective March 29, 2012. The effective date of July 11, 2014 indicates that the Veteran was actually in receipt of a 80 percent evaluation for six months before the effective date of the reduction that reduced his overall compensation to 70 percent, effective January 6, 2015, as a result of the reduction of the rating for allergic rhinitis. The Veteran was not notified prior to the reduction of his rating for allergic rhinitis that he had 60 days to present additional evidence showing that compensation should be continued at the present level and that he had a right to a hearing to present evidence if he wished, pursuant to 38 C.F.R. § 3.105 (e). Accordingly, the action to reduce the disability rating for the Veteran's service-connected allergic rhinitis is void, and the 30 percent rating is restored as though the reduction had not occurred. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Entitlement to an increased rating for tension headaches, rated as 0 percent disabling prior to February 22, 2018, and 30 percent, thereafter The Veteran contends that he is entitled to a higher rating for his tension headaches. He testified at the January 2021 Board hearing that he has headaches three to four times per week; and that his headaches worsened in 2015 and he has not worked since. See January 2021 Board hearing transcript, p. 14, 19-20. Headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine headaches. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks than required for the next higher rating. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Board concludes that prior to January 19, 2018, the Veteran had headaches with less frequent attacks than that required for the next higher compensable rating, corresponding to the rating criteria for a 0 percent rating under DC 8100. A January 2015 VA examination report shows that the Veteran did not have any characteristic prostrating attacks associated with his headaches. However, he described constant head pain and sensitivity to light that would last for less than a day. There was no impact on his ability to work. A November 2015 VA treatment record notes that the Veteran stated that his headaches involved feeling dizzy like he was going to pass out. He reported that these headaches would last for a long time. These findings do not show characteristic prostrating attacks averaging one in two months over the last several months. Even though the Veteran testified that his headaches got worse in 2015 and he stated that his headaches involved constant head pain and feeling dizzy in January and November 2015, the medical evidence does not rise to the level of extreme exhaustion or powerlessness on average once every two months. The January 2015 VA examination report specifically noted that the Veteran did not have any characteristic prostrating attacks associated with headaches. Thus, the next higher 10 percent rating is not warranted prior to January 19, 2018. While the Veteran's headaches did not warrant a compensable rating prior to January 19, 2018, a DBQ that date notes that the Veteran had characteristic prostrating attacks of migraine headaches more frequently than once per month, which more closely corresponds to a 50 percent rating under DC 8100. A February 2018 VA examination report notes that the Veteran had prostrating attacks once every month, which would warrant a 30 percent rating. However, the Veteran testified at an AOJ hearing in April 2018 that he would get headaches, sometimes every day, that required him to lay down in a dark room. See April 2018 AOJ hearing transcript, p. 9. A December 2019 DBQ also notes that the Veteran had prostrating attacks of migraine headaches more frequently than once a month. It was noted that the Veteran's headache condition impacted his ability to work in that he became incapacitated and had to lay down and sleep for hours in a dark area. The examiner reviewed the medical evidence and found that the Veteran had very frequent completely prostrating and prolonged attacks of headaches. It was noted that more often than not, the Veteran's headaches occurred several times per week or daily. The Veteran also had severe economic inadaptability and worked from home several days per week. His headaches were debilitating and affected his social life. He isolated himself to a dark quiet place. Overall, these findings more closely approximate the criteria for a 50 percent rating, effective January 19, 2018. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no reason shown to doubt the Veteran's credibility, in this regard. Considering all relevant evidence of record, the Board concludes that while prior to January 19, 2018, the Veteran had less frequent attacks of headaches, effective January 19, 2018, he had headaches with very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability. Thus, effective January 19, 2018, a 50 percent rating is warranted. However, prior to that date, a compensable rating for headaches does not apply. 6. Entitlement to an increased rating for testicular microlithiasis with Peyronie's disease and voiding dysfunction 7. Entitlement to an increased rating for residual scarring of the left shoulder 8. Entitlement to a TDIU 9. Entitlement to an increased rating residual scarring of left inguinal hernia The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). In the present case, the Veteran testified at the virtual Board hearing that he wanted to withdraw his claim for entitlement to an increased rating for testicular microlithiasis with Peyronie's disease and voiding dysfunction, increased rating for residual scarring of the left shoulder, entitlement to a TDIU, and entitlement to an increased rating for residual scarring of left inguinal hernia. The Veteran further testified at the hearing after being asked directly by the VLJ that he understood that if he wished to raise these issues again at VA he would have to start over again at the Regional Office and that the Board would not make a decision on these issues in connection with this appeal. See January 2021 virtual Board hearing transcript, pp. 2-3. Thus, the Veteran's oral withdrawal at the hearing was explicit, unambiguous, and done with full understanding of the consequences of such action. As the Veteran has withdrawn the claim for entitlement to an increased rating for testicular microlithiasis with Peyronie's disease and voiding dysfunction, increased rating for residual scarring of the left shoulder, entitlement to a TDIU, and entitlement to an increased rating for residual scarring of left inguinal hernia, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.