Citation Nr: 1123689 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 10-15 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for gout. 2. Entitlement to service connection for colorectal cancer. 3. Entitlement to service connection for benign prostate hypertrophy, claimed as a prostate ailment, due to in-service herbicide exposure. 4. Entitlement to a combined schedular disability rating greater than 80 percent effective August 11, 2008. ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, had active service from January 1965 to July 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which in relevant part, denied service connection for gout, colorectal cancer, and prostate disorder (claimed as a prostate ailment); granted service connection for erectile dysfunction and initially rated as 0 percent disabling; and assessed the combined evaluation (rating) for compensation to be 80 percent, effective August 2008, the date of claim. In a March 2009 statement, the Veteran disagreed with the denial of service connection for gout, the initial evaluation (rating) of the erectile dysfunction disability at 0 percent, and the combined evaluation for compensation being 80 percent. He did not understand why it was not 110 percent. In February 2010 the RO issued the Statement of the Case for two issues, service connection for gout and the assessment of the combined evaluation for compensation as 80 percent, effective August 2008. The Veteran's April 2010 substantive appeal clearly referred to this SOC and these two issues; therefore entitlement to service connection for gout and the assessment of the combined evaluation for compensation as 80 percent, effective August 2008, are properly before the Board. In a February 2010 Report of Contact, RO personnel contacted the Veteran to clarify the issues on appeal. The RO staff indicated the Veteran was no longer appealing the claim seeking an initial rating in excess of 0 percent for erectile dysfunction and memorialized that conversation with a Report of Contact. Therefore the Veteran withdrew his appeal regarding the initial evaluation (rating) for erectile dysfunction, and this issue is not on appeal. In November 2009 the Veteran submitted his Notice of Disagreement regarding the denial of service connection for colorectal cancer, as denied in the January 2009 rating decision. As no statement of the case has been issued for that claim, the Board has included it on the title page and is remanding the issue to the RO for the issuance of a Statement of the Case. The RO denied entitlement to service connection for a prostate disorder, claimed as prostate ailment, in the January 2010 rating decision. The Veteran disagreed in April 2010. The Statement of the Case was issued in June 2010 and the Veteran perfected the appeal in July 2010; therefore, that issue is properly before the Board. In an August 2009 rating decision, the RO granted individual unemployability, effective the August 2008 date of claim. The issues of entitlement to service connection for gout and for colorectal cancer 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. The Veteran did have service in the Republic of Vietnam and so is presumed to have been exposed to the herbicide Agent Orange. 2. The Veteran does not have a current disability of prostate cancer. 3. The Veteran did not experience chronic symptoms of benign prostate hypertrophy in service or continuous symptoms of benign prostate hypertrophy since service separation. 4. The current benign prostate hypertrophy is not related to service. 5. By application of the appropriate regulation, the Veteran's total combined evaluation as of August 11, 2008 was 80 percent. 6. By grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective from August 11, 2008, the Veteran was in receipt of a 100 percent disability rating from August 11, 2008. CONCLUSIONS OF LAW 1. Benign prostatic hypertrophy was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. The combined total schedular evaluation of 80 percent as of August 2008 was appropriately determined. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.25 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). a. Duty to Notify. VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) held in Dingess v. Nicholson, 19 Vet. App. 473 (2006), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) the Veteran's status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. This notice must also inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. With regard to the Veteran's claim seeking a higher total combined evaluation than 80 percent, any notice required under VCAA was provided in the June 2009 notice following the TDIU claim. With regard to the Veteran's claim seeking entitlement to service connection for benign prostate hypertrophy, a December 2009 VCAA notice satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, the RO informed the Veteran about the information and evidence not of record that was necessary to substantiate his claims; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Dingess. The Board finds the duty to notify has been met. b. Duty to Assist. The Board finds that all necessary assistance has been provided to the Veteran. The evidence of record indicates that the VA acquired the Veteran's VA, and service treatment records to assist the Veteran with his claims. The Veteran did not identify private treatment records for VA to obtain with regard to the claim seeking entitlement to service connection for benign prostate hypertrophy, but submitted directly to VA some private treatment records. The Veteran was not afforded an examination with regard to his claim seeking entitlement to service connection for benign prostate hypertrophy. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the association of the current disability to service, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. In this case, the service treatment records are silent as to any complaints or treatment for benign prostate hypertrophy. Because the Board in this decision has found as a fact that there was no in-service injury or disease or chronic symptoms of prostate disorder, there is nothing in service to which the current prostate hypertrophy could be related. Additionally, the post-service evidence does not indicate any current complaints or treatment referable to these conditions until decades following separation, and the weight of the evidence demonstrates no continuous symptoms since service separation. The record contains no competent evidence, either competent medical opinion or evidence of continuous symptomatology, suggesting a causal relationship between the current disability and active service. The Veteran has repeatedly argued that he is entitled to presumptive service connection for benign prostate hypertrophy, because this may develop into prostate cancer as a result of exposure to herbicide, which, if found, would obviate the need for an examination. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Benign Prostate Hypertrophy Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires competent evidence showing: (1) the existence of a present disability, (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). These diseases include chloracne or other acneform disease consistent with chloracne, all chronic B-cell leukemias, type II diabetes, Hodgkin's disease, ischemic heart disease, multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202 (Aug. 31, 2010). VA's Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 81,332 (Dec. 27, 2010). Even if a veteran does not meet the requirements of 38 C.F.R. § 3.309, as in this Veteran's case, the claims still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the veteran is not precluded from establishing service connection with proof of actual direct causation). The Veteran contends that he should be granted service connection for his prostate aliment because the currently diagnosed benign prostate hypertrophy could develop into cancer and that he should not have to wait for a diagnosis of prostate cancer to be entitled to a grant of service connection. See Statements November 2009, January 2010, and August 2010. At the onset, the Board finds that the Veteran had service in the Republic of Vietnam. Prostate cancer is a disease eligible for presumptive service connection under 38 C.F.R §3.307(a)(6) and 3.309(e) as an herbicide-related disease; however, in this case, there is no indication that the Veteran has been diagnosed with prostate cancer. See April 2003 private report. As recently as his August 2010 statement, the Veteran indicated that he has not been diagnosed with prostate cancer, though he remained concerned that he would be. Rather, the medical record consistently documented the diagnosis of benign prostatic hypertrophy, which, by definition, is a non-cancerous condition. As such, the Veteran's benign prostate disorder cannot be presumptively service-connected as an herbicide-related disease of prostate cancer. After a review of the evidence, the Board further finds that, while the Veteran has a current diagnosis of benign prostate hypertrophy (see October 2008 VA primary care evaluation), he did not sustain a prostate injury or disease in service, and did not experience chronic symptoms of a benign prostate hypertrophy disorder in service. In this regard, his service treatment records contain no complaints or diagnosis of benign prostate hypertrophy. Examinations dated December 1985 and June 1987 at the close of his service both found no "G-U" problems or that the genitourinary system was within normal limits. The Board also finds that the Veteran did not experience continuous symptoms of benign prostate hypertrophy after service separation in July 1987. Following his retirement from service, the Veteran submitted a claim in August 1987 seeking entitlement to service connection for a variety of disorders, which did not include any aspect of his prostate. The May 1988 VA general medical examination also found his G-U system within normal limits. As well, the Veteran submitted claims for other disorders in June 1999, June 2001, August 2008, and December 2008, for other disorders that did not include a claim regarding a prostate disorder. This is further evidence against a finding that he experienced continuous symptoms of benign prostate hypertrophy since service separation or that he developed a benign prostate hypertrophy disorder in service. The Board further finds that the Veteran's benign prostate hypertrophy is not related to service. Indeed, there is no in-service injury or disease or even chronic symptoms to which the current benign prostate hypertrophy could be related. While the Veteran currently has benign prostate hypertrophy, other than the Veteran's own contentions that he should be service connected for his prostate "ailment" because it may at some point develop into cancer, there is no credible evidence of a relationship between the current benign prostate hypertrophy and service. While the Veteran is competent to relate his experiences of observable symptoms, he is not competent to render a medical opinion on a system as complex as the genitourinary system. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). The Veteran also is not competent to diagnose prostate cancer because such diagnosis requires specific clinical testing to reveal the disease process, and is not competent to render an opinion as to the cause or etiology of any carcinoma because doing so requires medical knowledge or training about the onset and progression of the unseen aspects of the prostate cancer process, in addition to any observable symptoms of such a disorder. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). As well, service connection may only be granted for a current disability, regardless of the theory of service connection; when a claimed condition is not shown, there may be no grant of service connection, either direct, secondary or presumptive. See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer, 3 Vet. App. at 225. While the Board acknowledges the Veteran's concerns about cancer, the Board cannot grant service connection for a disorder of prostate cancer that the Veteran himself has stated he does not have, and the competent medical evidence has not shown him to have. Accordingly, for the reasons described above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for benign prostate hypertrophy, claimed as a prostate ailment, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Schedular Combined Rating In the January 2009 rating decision, the RO increased the evaluation for the Veteran's already service-connected hypertension to 60 percent and recharacterized the disability as hypertensive cardiovascular disease and diabetic neuropathy. The RO also granted service connection for diabetes mellitus, evaluated as 10 percent disabling, and then for peripheral neuropathy of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity, each initially evaluated as 10 percent disabling, and then granted service connection for erectile dysfunction as 0 percent disabling. The Board finds that the RO properly calculated the percentages to reach a total combined schedular evaluation of 80 percent, as of August 11, 2008. Under 30 C.F.R. 4.25 and Table I, The Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, for example, a person having a 60 percent disability is considered 40 percent efficient. The Veteran in this case as well had a 60 percent rating for his most serious disability, the hypertensive cardiovascular disease. Instead of simply adding the percentages, as the Veteran contends, the provision that VA is required to follow considers the first the most disabling condition, and then calculates the remained efficiency of that individual from that point. Using Table I, with the Veteran's most severe disability of 60 percent, then 100 percent subtract 60 percent is a 40 percent efficiency. The remaining 10 percent disabilities are deducted in turn from that 40 percent, which culminated in a total combined evaluation of 80 percent. Moreover, by grant of a TDIU, effective from August 11, 2008, the Veteran was in receipt of a total, 100 percent, disability rating from August 11, 2008. For this reason, any questions of a higher combined schedular disability rating in excess of 80 percent for the period from August 11, 2008 have been rendered moot. For these reasons, the appeal is denied. ORDER Service connection for benign prostate hypertrophy, claimed as a prostate ailment, is denied. A total combined evaluation greater than 80 percent as of August 2008 is denied. REMAND As stated in the Introduction, in its January 2009 rating decision, the RO denied service connection for colorectal cancer. Though the Veteran did not list this denial among his issues in his March 2009 statement that was accepted as a notice of disagreement, the Veteran clearly disagreed with the RO's January 2009 denial of service connection for colorectal cancer in his November 2009 statement. As the Veteran submitted a notice disagreeing with the RO's decision within the required time period, indicating his disagreement with the denial of service connection for colorectal cancer, the Board finds that this issue must be returned to the RO for the issuance of a Statement of the Case and any further necessary development. See Manlicon v. West, 12 Vet. App. 238 (1999). Finally, the Veteran claimed entitlement to service connection for gout initially in August 2008. He identified treatment providers, in a separate statement received in September 2008, as being two private physicians, VA, and a clinic that provided him treatment as a military retiree under the TRICARE system, "Trucare," that had an address in the Philippines. Though it is not clear for what disorder the two listed private physicians provided treatment, the Veteran identified the "Trucare" clinic again in January 2010, after receiving a duty to assist letter from the RO specifically with regards to his gout disorder. Despite the Veteran having identified this clinic twice in the record as having provided relevant medical treatment, and his having provided a signed VA Form 21-4142, there is no indication in the claims file that the RO ever mailed any inquires, or the signed VA 21-4142, to this clinic in an attempt to obtain these records, or, more significantly, informed the Veteran that it had been unable to obtain these records. The Board is mindful that the Veteran has never had a representative in the entire claims process; therefore, the Board cannot accept the Veteran's later statements that VA had "everything" and that he had nothing more to submit. Upon remand, the AMC/RO must obtain these non-VA treatment records from the "Trucare" clinic. Accordingly, the claims seeking entitlement to service connection for gout and for colorectal cancer are REMANDED for the following action: 1. The AMC/RO should issue the Veteran a Statement of the Case (SOC) on the issue of entitlement to service connection for colorectal cancer. The Veteran should also be advised that, for the Board to have jurisdiction in the matter, he must file a timely substantive appeal responding to the SOC. Should the Veteran submit a timely substantive appeal, the matter should be the returned to the Board for appellate review. 2. Contact the Veteran and request a properly completed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any treatment records at TruCare Medical Clinic, Unit 18, Mariilina East Center BCD9, 83 Gil Fernando Ave, San Roque, Marikina City, Republic of the Philippines, that pertain to the Veteran's claimed gout disorder. a. Document any attempts to obtain such records, to include any negative replies. Upon receipt of such releases, VA must take all appropriate steps to obtain the identified relevant records. b. In the alternative, the Veteran should be informed that he may submit the records himself directly to VA. 3. When the development requested has been completed, the claim seeking entitlement to service connection for gout should be adjudicated on the merits. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC), and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs