Citation Nr: 1047612 Decision Date: 12/22/10 Archive Date: 12/30/10 DOCKET NO. 09-06 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for osteoarthritis, bilateral hands (claimed as bilateral hand pain). 2. Entitlement to service connection for a bilateral foot disability (claimed as feet problems/flat feet). 3. Entitlement to service connection for prostate cancer secondary to herbicide exposure. 4. Entitlement to service connection for erectile dysfunction secondary to a service-connected disability. 5. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease and degenerative disc disease, lumbosacral spine, prior to April 15, 2009, and in excess of 20 percent from April 16, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to September 1980, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) from a June 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which (1) denied service connection for osteoarthritis, bilateral hands, feet problems/flat feet, a prostate condition, and erectile dysfunction secondary to a prostate condition, and (2) granted service connection for degenerative joint disease and degenerative disc disease, lumbosacral spine, and assigned a 10 percent evaluation, effective August 29, 2007. In a July 2009 decision, the RO increased the evaluation for the Veteran's back disability to 20 percent, effective April 16, 2009. As the Veteran has not been granted the maximum benefit allowed and he has subsequently indicated he is seeking a rating in excess of 20 percent, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The prostate cancer, erectile dysfunction, and back issues have been recharacterized to more accurately reflect the Veteran's claim, the medical evidence, and the procedural history. In March 2010, the Veteran submitted additional evidence along with a waiver of initial RO consideration. The issue of entitlement to service connection for erectile dysfunction, as well as an increased evaluation for a back disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Osteoarthritis, bilateral hands, was not shown during service or for many years thereafter. The current osteoarthritis of the bilateral hands is not related to active service. 2. There is no competent evidence of a bilateral foot disability. 3. The Veteran served in the Republic of the Vietnam during the Vietnam era, and is presumed to have been exposed to herbicide agents. 4. The Veteran's prostate cancer is etiologically related to service, to include exposure to herbicide. CONCLUSIONS OF LAW 1. Osteoarthritis, bilateral hands, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.159, 3.303 (2010). 3. The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1116, 1131, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the prostate cancer claim, the benefit sought on appeal is being granted in full. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed. With respect to the bilateral hand and bilateral foot claims, the RO provided the Veteran pre-adjudication notice by letter dated in October 2007. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained all available service treatment records. A retirement examination report is not of record. When, as here, service treatment records are lost or missing, VA has a heightened duty to consider the applicability of the benefit-of- the-doubt rule, to assist the veteran in developing the claim, and to explain the reasons and bases for its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). Although there is a heightened obligation to more fully explain the reasons and bases for a decision, when, as here, there are missing service treatment records, this, alone, a correlation between his currently claimed condition and his military service must still be shown. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993), citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The VA has obtained private treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran physical examinations. A medical opinion was not provided with respect to the service connection claims for bilateral hand and bilateral foot disabilities. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C.A. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record does not show any evidence of a bilateral foot disability and, as discussed below, there is no evidence that the Veteran's osteoarthritis of the bilateral hands was incurred in or aggravated by service. Under these circumstances, VA's duty to assist doctrine does not require that a veteran be afforded a medical examination. In this regard, there is no reasonable possibility that a VA examination would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claim file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time. II. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Degenerative joint disease is a listed chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection, there must be a medical diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in- service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, 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 a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Osteoarthritis, Bilateral Hands The Veteran contends that his current osteoarthritis of the bilateral hands is related to service. Specifically, he contends that this disability first began in 1980. A February 1962 service treatment record (STR) shows that the Veteran was treated for right wrist pain of 24 hours' duration. No diagnosis is noted. As discussed above, no separation examination report is of record. However, periodic examinations dated August 1959, July 1960, March 1963, April 1963, July 1966, April 1967, July 1969, January 1975, and February 1977 contain normal clinical evaluations of the upper extremities. Neither medical nor X-ray evidence of arthritis of the bilateral hands is shown within one year of service and it is not contended otherwise. Thus, presumptive service connection for osteoarthritis, bilateral hands, is not warranted. Post-service medical evidence does not reflect bilateral hand osteoarthritis for many years after service discharge. Specifically, in a March 1996 Personal Medical History, the Veteran stated that he began having joint pain in both wrists after an October 1994 (14 years post-service) motor vehicle accident. He denied any current problems. The Veteran was diagnosed with osteoarthritis in both hands in April 2006. The competent and credible evidence of record is insufficient to show any relationship between osteoarthritis of the Veteran's hands and service. There is an absence of any medical evidence in support of the Veteran's allegations, and his statements, while competent, lack credibility. The Veteran has indicated that his bilateral hand pain began during service, but this is not consistent with the contemporaneous evidence and is inconsistent with his 1991, 1993, 1994, and 1996 statements. The absence of contemporaneous records does not defeat the credibility of the Veteran's statements, but may be considered in evaluating them. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). While the Veteran clearly sought treatment for right wrist pain in February 1962, there is no indication of any bilateral hand symptomatology, to include arthritis or joint pain, at any point during service. Moreover, private medical records dated October 1991, March 1993, and July 1994 show that the Veteran denied a history of arthritis. Furthermore, in March 1996 the Veteran reported that the onset date for his bilateral wrist pain was October 1994. In addition, the post-service medical evidence does not reflect complaints or treatment related to bilateral hand osteoarthritis for more than 15 years following active service. The fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The preponderance of the evidence is against the claim; there is no doubt to be resolved; service connection for osteoarthritis, bilateral hands, is not warranted. Bilateral Foot Disability The Veteran claims that he developed a bilateral foot disability, to include flat feet, during service. Specifically, he claims that his foot pain first began in 1980. A March 1962 STR shows that the Veteran was treated for pain in the right forefoot. There was slight swelling and tenderness on palpation, and the skin over this area was warmer than the other foot. The Veteran could move his foot without pain. He was treated in the emergency room in May 1962 for right forefoot pain. The clinician noted that the right arch seemed to be lower than the left. A February 1959 entrance examination contains a normal clinician evaluation of the lower extremities. During an August 1959 periodic examination, the Veteran reported that he had suffered a foot fracture during childhood. (A June 1998 private medical record shows that he reportedly fractured the small toe of his right foot when he was 14 years old). A February 1963 STR shows that the Veteran was treated for right foot metatarsal pain. An orthopedic consultation record shows that there was pain over the distal aspect of the third and fourth metatarsals intermittently for 10 months. The Veteran walked with a toe-out gait. No other abnormality was noted. X- rays were ordered, but they are not in the claim file. The clinician diagnosed "metatarsal relaxation? presently symptomatic." The Veteran received orthotic supports in March 1963. He was treated again for metatarsal arch pain in May 1963. No separation examination report is of record. However, periodic examinations dated August 1959, July 1960, March 1963, April 1963, July 1966, April 1967, July 1969, January 1975, and February 1977 contain normal clinical evaluations of the lower extremities. Post service private medical records show no current bilateral foot disabilities or complaints. The Veteran has been repeatedly seen for musculoskeletal complaints and problems, but no medical provider has identified or diagnosed any bilateral foot disability. Service connection cannot be granted in the absence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no diagnosed bilateral foot disability. While the Veteran is competent to describe subjective complaints regarding his feet, he is not competent to diagnose a disability where such requires specialized medical training or knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim; there is no doubt to be resolved; service connection for a bilateral foot disability is not warranted. Prostate Cancer The Veteran claims that he has been diagnosed with prostate cancer, and that this condition should be presumptively service-connected because he was exposed to the herbicide Agent Orange while in Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). October 2007 correspondence from the National Personnel Records Center (NPRC) reflects that the Veteran had service in Vietnam from February 1965 to August 1966, and from March 1971 to March 1972. Thus, the Veteran is presumed to have been exposed to herbicides in service. For veterans exposed to herbicides, certain diseases, including prostate cancer, shall be service-connected if the requirements of § 3.307 (a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2010). Prostate cancer shall be service connected if it manifests to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). The first evidence of prostate abnormality was noted in a November 2005 private treatment record, which showed an enlarged prostate. In July 2007, a hard area or nodule on the prostate was discovered, and the Veteran was diagnosed with prostatitis. The Veteran was diagnosed with asymptomatic adenocarcinoma of the prostate in August 2007 by biopsy. In September 2007, the Veteran's physician noted that the Veteran did not have urinary symptoms or any systemic complaints, but that he did wake up "a few times" at night to urinate. An October 2007 Agent Orange examination report contains a diagnosis of benign prostatic hypertrophy, on treatment with Finasteride, with prostate cancer recently diagnosed. The diagnosis was prostate cancer, "exact extent uncertain, still undergoing evaluation." A November 2007 mapping biopsy was negative. The Veteran's private physician opined that "this is an incidental cancer that may not need to be treated at this stage." In June 2008, the Veteran's private physician informed the VA that the Veteran's cancer was not active. In a March 2008 VA examination report, the examiner noted that Finasteride is not a usual form of treatment for prostate cancer, and concluded that the Veteran must be "on some research protocol." The examiner noted that the Veteran did not report lethargy, weakness, anorexia, or weight change. The Veteran reportedly had had bladder leakage for "a number of years", which the examiner described as minor since the Veteran did not wear pads, diapers, or catheters. The diagnosis was adenocarcinoma of the prostate "sharply localized involving less than 1% of the total prostatic volume." The RO denied service connection because the Veteran did not have a "confirmed diagnosis" of prostate cancer. VA treatment records, private treatment records, and the March 2008 VA examination clearly establish that the Veteran currently carries a diagnosis of prostate cancer. Furthermore, the medical evidence establishes that the Veteran awakens at night to urinate more than twice. This finding warrants a 10 percent evaluation under 38 C.F.R. § 4.155a. Thus, the regulatory requirements for service connection for prostate cancer on a presumptive basis are satisfied. Accordingly, service connection for prostate cancer is warranted. ORDER Service connection for osteoarthritis, bilateral hands, is denied. Service connection for a bilateral foot disability is denied. Service connection for prostate cancer is granted. REMAND Manlincon Issue In June 2008, the RO granted service connection for a back disability and assigned a 10 percent evaluation, effective August 29, 2007. An April 2009 Report of Contact establishes that the Veteran wanted "to claim increase for lumbosacral spine." The Veteran's April 2009 correspondence was a valid and timely NOD with that decision. See 38 C.F.R. §§ 20.201, 20.302. In a July 2009 decision, the RO increased the evaluation for the Veteran's back disability to 20 percent, effective April 16, 2009. No statement of the case (SOC) has been issued regarding the appeal of the evaluation of the service-connected back disability. Therefore, a remand is necessary. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30; Manlincon v. West, 12 Vet. App. 238 (1999). An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. A June 2009 VA examination report shows that the Veteran works full time and "is able to function in his usual occupation." Therefore, any inferred TDIU claim is inapplicable in this case. Erectile Dysfunction The first indication that the Veteran was suffering from erectile dysfunction was during a visit with his private physician in March 2007. At that time, the physician noted that the Veteran had an outside prescription for Levitra. The physician diagnosed male erectile disorder. In July 2007, the Veteran reported that he was taking Cialis for erectile dysfunction. In August 2007, he reported that he was very concerned about the impact of the prostate cancer on his sexual function. The Veteran stated that he did not have very good sexual function and that he had had "poor effects" with using Viagra and Levitra in the past. During the October 2007 Agent Orange examination, the Veteran reported that he had been diagnosed with erectile dysfunction in 2005, but was not currently on any treatment. The examiner diagnosed erectile dysfunction. The March 2008 VA examination report shows that the Veteran reportedly had experienced improved sexual performance while taking Finasteride. He was able to get an erection, achieve penetration, and ejaculate. The examiner determined that the Veteran did not have erectile dysfunction. The diagnosis was "erectile dysfunction - not identified - insufficient evidence to warrant diagnosis of acute or chronic condition." A December 2009 VA treatment record notes that the Veteran reported that "nothing works to include Viagra, Levitra, Vardenofil." He requested and received a prescription for Cialis. The record contains a diagnosis of erectile dysfunction at various times during the pendency of this claim. However, it is unclear as to whether this currently diagnosed disability is related to a service connected disability. The Veteran has stated that he was first diagnosed with erectile dysfunction in 2005, which is before he was diagnosed with prostate cancer and after he was diagnosed with a back disability. The RO did not attempt to obtain these records. This must be done. In addition, the Veteran should be afforded a VA medical opinion to determine if he currently suffers from erectile dysfunction. The Veteran is service connected for a back disability and prostate cancer. The opinion should include a determination of whether either condition is causing or aggravating any currently diagnosed erectile dysfunction. Such an opinion is necessary for a determination on the merits of the claim. See 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran for any additional identifying information he may be able to provide, to include names, dates of treatment and locations of physicians or medical treatment facilities who have treated him for erectile dysfunction from 2005 to the present. Acquire any such records after having received authorization and consent for release, and then associate these records with the claim file. 2. Schedule an examination to determine the nature and etiology of the Veteran's claimed erectile dysfunction (ED) disability. As to any erectile dysfunction disability identified, the examiner should provide an opinion as to whether it is at least as likely as not that it was caused or aggravated by the Veteran's service-connected back disability or service-connected prostate cancer. The claim file must be reviewed in conjunction with the examination. A rationale for all opinions must be provided. 3. The Veteran should be provided a Statement of the Case which addresses the issue of entitlement to an evaluation in excess of 10 percent for a back disability prior to April 16, 2009, and in excess of 20 percent from April 16, 2009. If, and only if, the appeal is perfected by a timely filed substantive appeal, this issue should be certified to the Board. 4. Readjudicate the erectile dysfunction claim. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs