Citation Nr: 22013445 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-38 543A DATE: March 9, 2022 ORDER Entitlement to service connection for chronic fatigue as secondary to service-connected acute lymphoblastic leukemia (ALL) is granted. Entitlement to service connection for shortness of breath as secondary to service-connected ALL is granted. Entitlement to service connection for irritable bowel syndrome as secondary to service-connected ALL is granted. Entitlement to service connection for infectious skin conditions with dermoid cysts of the forehead, left nostril, and vocal cord as secondary to service-connected ALL is granted. Entitlement to service connection for insomnia as secondary to service-connected ALL is granted Entitlement to service connection for degenerative arthritis, mechanical back pain, facet joint arthropathy, and spondylosis as secondary to service-connected ALL is granted. Entitlement to service connection for a left knee disability, including degenerative arthritis, as secondary to his service-connected ALL is granted. Entitlement to service connection for a right knee disability, including degenerative arthritis, as secondary to his service-connected ALL is granted. Entitlement to service connection for a right ankle disability, including degenerative arthritis, as secondary to his service-connected ALL is granted. Entitlement to a compensable rating for erectile dysfunction is denied. REMANDED Entitlement to a compensable rating for hypogeusia, claimed as low production of saliva, constant dry mouth, and severe trouble swallowing, is remanded. Entitlement to a compensable rating for scars of the anterior trunk and bilateral underarms is remanded. REFERRED The issue of entitlement to service connection for skin cancer as secondary to service-connected ALL was raised during the August 2021 hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran's chronic fatigue is due to his ALL treatment. 2. The Veteran's shortness of breath is due to his ALL treatment. 3. The Veteran's irritable bowel syndrome is due to his ALL treatment. 4. The Veteran's skin conditions with dermoid cysts of the forehead, left nostril, and vocal cord are due to his ALL treatment. 5. The Veteran's insomnia is due to his ALL treatment. 6. The Veteran's back disability, diagnosed as degenerative arthritis, mechanical back pain, facet joint arthropathy, and spondylosis, is due to his ALL treatment. 7. The Veteran's left knee disability, including degenerative arthritis, is due to his ALL treatment. 8. The Veteran's right knee disability, including degenerative arthritis, is due to his ALL treatment. 9. The Veteran's right ankle disability, including degenerative arthritis, is due to his ALL treatment. 10. The Veteran does not have deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for shortness of breath as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for gastrointestinal disability, claimed as irritable bowel syndrome, as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for skin conditions with dermoid cysts of the forehead, left nostril, and vocal cord as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for insomnia as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for degenerative arthritis, mechanical back pain, facet joint arthropathy, and spondylosis as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for a left knee disability as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for a right knee disability as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for service connection for a right ankle disability as secondary to service-connected ALL are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. The criteria for a compensable rating for service-connected erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1994 to January 1999. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran and Dr. J.A. provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for chronic fatigue as secondary to service-connected ALL is granted. 2. Entitlement to service connection for shortness of breath as secondary to service-connected ALL is granted. 3. Entitlement to service connection for irritable bowel syndrome, as secondary to service-connected ALL is granted. 4. Entitlement to service connection for infectious skin conditions with dermoid cysts of the forehead, left nostril, and vocal cord as secondary to service-connected ALL is granted. 5. Entitlement to service connection for insomnia as secondary to service-connected ALL is granted. The Veteran seeks service connection for chronic fatigue, shortness of breath, a gastrointestinal disability, a skin condition, and insomnia as secondary to his service-connected ALL. Medical records show the Veteran underwent chemotherapy, radiation therapy, and a bone marrow transplant to treat his ALL. He has diagnoses of fatigue, shortness of breath, irritable bowel syndrome (IBS) and chronic diarrhea, infected cysts, and insomnia. A September 2013 VA examination report notes that the Veteran had fatigue and shortness of breath due to ALL. The examiner also documented his complaints of insomnia, chronic back problems, cysts on his face, and IBS. In an August 2015 declaration, Dr. J.A. stated that he is a specialist in hematology, the Director of Medical Quality, and an Associate Professor of Hematology/Hematopoietic Cell Transplantation. He is also the editor-in-chief for Evidence Based Oncology and serves as the co-chair of the National Comprehensive Cancer Networks practice guidelines committee for ALL. He became involved with the Veteran's treatment for ALL in September 2000. Dr. J.A. reviewed the Veteran's medical records and opined that the Veteran's chronic fatigue, shortness of breath, insomnia, and gastrointestinal disorder are related to his ALL treatment. Dr. J.A. explained that fatigue, shortness of breath, insomnia, and intermittent bowel dysfunction are well-recognized secondary effects of treatment for ALL. During the August 2021 hearing before the Board, Dr. J.A. explained his medical background and expertise in treating ALL. He testified that he was the Veteran's bone marrow transplant physician and led the care team throughout the process of evaluating the Veteran's transplant and post-transplant care. Dr. J.A. explained the Veteran's chemotherapy, radiation, and bone marrow transplant treatments and how and why the treatments led to the Veteran's residuals, to include chronic fatigue, shortness of breath, insomnia, and IBS. The Board finds Dr. J.A.'s testimony probative as he is an expert in the field and he provided opinions supported with rationale. The Board acknowledges that VA examiners have provided negative nexus opinions finding no relationship between the Veteran's disabilities and service or ALL. However, the negative opinions are outweighed by the written statement and testimony provided by Dr. J.A. Dr. J.A. is an expert in his field and treated the Veteran's ALL. He provided a comprehensive overview of the Veteran's treatment, addressed the claimed conditions, and explained how the claimed conditions are related to ALL treatment. Consequently, the Board finds that chronic fatigue, shortness of breath, insomnia, and IBS are residuals of the Veteran's service-connected ALL and as such, service connection for these disabilities is warranted on a secondary basis. The claims are granted. 6. Entitlement to service connection for a back disability as secondary to service-connected ALL is granted. The Veteran seeks service connection for a back disability as secondary to his service-connected ALL. Treatment records show diagnosis of degenerative arthritis, mechanical back pain, facet joint arthropathy, and spondylosis of the spine. During the July 2014 VA examination, the Veteran reported that his back started bothering him in 2000. In February 2014, the Veteran's primary care provider, MAMP, ANP-C, indicated that she had treated the Veteran since 1998 and was aware of his medical history and treatment for ALL. She also noted that she reviewed his service treatment records. MAMP indicated that residuals from his treatment of ALL included arthralgias from mild spondylitic changes in the cervical and thoracic spine. In an August 2015 declaration, Dr. J.A. noted that a July 2014 VA examiner attributed the Veteran's back pain to degenerative arthritis of the spine. Dr. J.A. explained that radiation treatment is well known to accelerate the development and progression of degenerative arthritis, and as such, the continuing development of arthritis is properly attributed to ALL treatment. In July 2020, the Veteran submitted a Disability Benefits Questionnaire (DBQ) of the spine, which was completed by a private provider, Dr. B.W. Dr. B.W. noted diagnoses of mechanical back pain, facet joint arthropathy, and degenerative disc disease. In June 2020 medical records from Dr. B.W., he indicated that the Veteran also had degenerative joint disease of the thoracic spine. During the August 2021 hearing before the Board, Dr. J.A. explained that some patients develop osteoarthritis of the spine. He indicated that he reviewed the DBQ filed in July 2020, and that the Veteran's disabilities of the spine are directly related to treatment for ALL to a reasonable degree of medical certainty. The Board acknowledges that a VA examiner provided a negative nexus opinion in July 2014 finding no relationship between the Veteran's back disabilities and service or ALL. However, the negative opinion is outweighed by the written statement and testimony from Dr. J.A. Dr. J.A. is an expert in his field and treated the Veteran's ALL. He provided a comprehensive overview of the Veteran's treatment, addressed the claimed conditions, and explained how the claimed conditions are related to ALL treatment. Consequently, the Board finds the Veteran's back diagnoses are residuals of the Veteran's service-connected ALL and as such, service connection for a back disability is warranted on a secondary basis. The claim is granted. 7. Entitlement to service connection for a left knee disability, including degenerative arthritis, as secondary to his service-connected ALL is granted. 8. Entitlement to service connection for a right knee disparity, including degenerative arthritis, as secondary to his service-connected ALL is granted. 9. Entitlement to service connection for a right ankle disability, including degenerative arthritis, as secondary to his service-connected ALL is granted. The Veteran seeks service connection for bilateral knee disabilities and a right ankle disability, to include as secondary to his service-connected ALL. The Veteran submitted copies of his service treatment records, which show he was treated for a right ankle sprain in February 1995. He was treated for left knee pain as a result of a fall in March 1996. He was also treated for a right knee injury; however, the record is undated. Treatment records show diagnoses of degenerative arthritis knees and right ankle. Treatment records also document the Veteran's reports that he has had bilateral knee and right ankle pain and complications since service. In February 2014, the Veteran's primary care provider, MAMP, ANP-C, indicated that she had treated the Veteran since 1998 and was fully aware of his medical history and treatment for ALL. She also noted that she reviewed his service treatment records. MAMP indicated that residuals from his treatment of ALL included arthralgia of the knees due to joint degeneration. In the July 2014 VA examination for the right ankle, the provider noted that imaging showed an old injury of indeterminate age. The examination report for the knees showed the Veteran's complaints of pain and popping; however, a diagnosis was not provided. In an August 2015 declaration, Dr. J.A. stated that the Veteran's bilateral knee pain was related to his ALL treatment. Dr. J.A. explained that radiation treatment is well known to accelerate the development and progression of degenerative arthritis, and as such, the continuing development of arthritis is properly attributed to ALL treatment. In July 2020, the Veteran submitted private DBQs from Dr. B.W. for the ankle and knees. The ankle DBQ shows multiple diagnoses of the right ankle. The knee DBQ shows bilateral knee tendonitis, instability, patellofemoral pain syndrome, prepatellar bursitis, degenerative joint disease, and knee pain. Dr. B.W. opined that the Veteran's in-service right ankle and bilateral knee disabilities persisted after service and worsened as a result of post-service employment. Regarding diagnostic testing, Dr. B.W. stated that x-rays showed chondromalacia patella with narrowing of the patellofemoral joints of both knees far more than he would expect for a normal or light weight 50-year-old male. During the August 2021 hearing before the Board, Dr. J.A. testified that he was aware that the Veteran injured his right ankle and both knees during service. He also indicated that he had reviewed the DBQ and imaging study reports from Dr. B.W. Dr. J.A. explained that treatment for ALL can cause significant bone and joint injury and lead to premature osteoarthritis as in the Veteran's case, a finding supported by the imaging reports from Dr. B.W. The Board acknowledges that a VA examiner provided a negative nexus opinion in July 2014 finding no relationship between the Veteran's bilateral knee and right ankle disabilities and service or ALL. However, the negative opinion is outweighed by the written statement and testimony from Dr. J.A. Dr. J.A. is an expert in his field and treated the Veteran's ALL. He provided a comprehensive overview of the Veteran's treatment, addressed the claimed conditions, and explained how the claimed conditions are related to ALL treatment. Consequently, the Board finds the Veteran's bilateral knee and right ankle disabilities are due to the Veteran's service-connected ALL. Accordingly, service connection for right ankle and bilateral knee disabilities is granted. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 10. Entitlement to a compensable rating for erectile dysfunction is denied. The Veteran seeks a compensable rating for erectile dysfunction, which has been rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522, penis deformity with loss of erectile power. Under this code, a 20 percent rating is warranted for loss of erectile power and penile deformity. 38 C.F.R. § 4.115b, Diagnostic Code 7522. No other ratings are provided under Diagnostic Code 7522 for erectile dysfunction. In this case, the medical evidence does not show and the Veteran does not contend that he has a deformity of the penis. Since the Veteran is not shown to have a penile deformity, a compensable rating is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Board notes that the Veteran is compensated for his loss of erectile power by the assigned special monthly compensation based on loss of use of a creative organ. Accordingly, the evidence is against the claim for a compensable evaluation for erectile dysfunction and as such, the benefit of the doubt doctrine does not apply. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating for hypogeusia, claimed as low production of saliva, constant dry mouth, and severe trouble swallowing, is remanded. During his August 2021 hearing before the Board, the Veteran testified that his hypogeusia progressed to include hyposmia, or loss of sense of smell. While Dr. J.A. testified that hyposmia and hypogeusia are caused by damage to the first cranial nerve, it is unclear whether hyposmia is a progression of hypogeusia, or whether it is a separate disability that may be related to his service-connected ALL or hypogeusia. Accordingly, a remand is required to schedule an examination to determine the current severity of the Veteran's hypogeusia and whether it has progressed to include hyposmia. 2. Entitlement to a compensable rating for scars of the anterior trunk and bilateral underarms is remanded First, the Board acknowledges that during the August 2021 hearing, the Veteran's representative indicated that he requested a copy of the VA scars examinations. Notably, a request was included in correspondence submitted in February 2020. Unfortunately, VA has not satisfied the request; however, the Veteran's representative has been listed in VBMS and he may request electronic access to the Veteran's claims file if he has not already done so. The requested examination reports are located in the July 23, 2014, and August 2, 2018, C&P Examination entries. Given the Veteran's request that his claims be advanced on the docket and considering the full grant of all service connection claims addressed above, the Board finds that delaying the issuance of this decision to provide the representative with a copy of the requested examination reports would be prejudicial to the Veteran. Further, the Board is remanding this matter for development and as such, the Veteran is not prejudiced by the lack of access to the examination reports at this time. Regarding entitlement to an increased rating for scars, to include Hickman catheter scar with retained subcutaneous catheter component, the Board observes that an examination was conducted in August 2018; however, the RO did not issue a Supplemental Statement of the Case (SSOC) addressing the new evidence. Significantly, the August 2018 examiner indicated that a small piece of the Hickman catheter was palpated under the scar. The catheter was not addressed in the 2014 examination. On remand, the RO must be provided the opportunity to issue a SSOC before the Board may adjudicate this matter. Additionally, the RO should afford the Veteran an examination to determine the current severity of his disability and to obtain a retrospective opinion addressing the severity of his disability during the pendency of the claim, to include the impact of the scar with retained piece of catheter on surrounding muscle groups and joints. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from February 27, 2020, to present. 2. Notify the Veteran's representative that he can request access to the Veteran's electronic claims file. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his hypogeusia, claimed as low production of saliva, constant dry mouth, and severe trouble swallowing. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide a full description of the Veteran's disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should indicate whether the Veteran's disability has progressed to include loss of sense of smell, or hyposmia. If hyposmia is not a progression of the hypogeusia, then the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that hyposmia is related to or has been aggravated by service-connected hypogeusia and/or ALL. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. All findings must be supported with rationale. In addressing this matter, the examiner should consider the testimony from Dr. J.A. indicating that radiation therapy causes hypogeusia and hyposmia. 4. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his scars, to include Hickman catheter scar with retained subcutaneous catheter component. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. All necessary testing must be completed, to include examinations of affected muscle groups and joints. (Continued on the next page) The examiner should provide a full description of the Veteran's disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria (scars, muscles, joints, etc.). Then, the examiner should provide a retrospective opinion addressing the severity of the Veteran's disability since March 2012. The examiner should consider the Veteran's written statements as well as his testimony provided in August 2021. All findings must be supported with rationale. 5. Then, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide the Veteran and his representative a SSOC and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.