Citation Nr: 1311193 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 05-38 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating, in excess of 10 percent, for peripheral neuropathy of the left lower extremity. 2. Entitlement to an initial rating, in excess of 10 percent, for peripheral neuropathy of the right lower extremity. 3. Entitlement to service connection for prostatic hypertrophy, to include as due to herbicide exposure. 4. Entitlement to service connection for hypertension, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to May 1966. The matter of hypertension comes to the Board of Veterans' Appeals (Board) from a March 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in April 2005, a statement of the case was issued in November 2005, and a substantive appeal was received in November 2005. The remaining matters listed above come to the Board from a November 2007 rating decision of the VA RO. A notice of disagreement was filed in February 2008, a statement of the case was issued in November 2008, and a substantive appeal was received in December 2008. The Veteran testified at a hearing before the Board in April 2010. The issue of entitlement to service connection for hypertension, to include as due to service-connected disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service connected peripheral neuropathy of the left lower extremity is manifested by mild peripheral sensory neuropathy with occasional numbness. 2. The Veteran's service-connected peripheral neuropathy of the right lower extremity is manifested by mild peripheral sensory neuropathy with occasional numbness. 3. The competent and credible evidence fails to demonstrate that the Veteran has prostatic hypertrophy that is related to his active duty service to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for an increased initial evaluation, in excess of 10 percent for peripheral neuropathy of the left lower extremity, as due to diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 8520 (2012). 2. The criteria for an increased initial evaluation, in excess of 10 percent for peripheral neuropathy of the right lower extremity, as due to diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 8520 (2012). 3. Prostatic hypertrophy was not incurred in or aggravated by military service nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letters dated in August 2007 with respect to the issue of prostatic hypertrophy, February 2008 with respect to the issues of right and left lower extremity peripheral neuropathy, and July 2010 with respect to both issues, fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The July 2010 letter provided this information. In the instant case, the Veteran's claims for increased ratings are "downstream" issues. Where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, because the purpose that the notice was intended to serve has been fulfilled. Nevertheless, this notice was provided in the July 2010 letter. The Board observes that the August 2007 letter was sent to the Veteran prior to the November 2007 a rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess, however, was sent after the initial adjudication of the Veteran's claims. Nevertheless, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the July 2010 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2002); 38 C.F.R. § 3.159(b) (2012), and Dingess, supra, and after the notice was provided the case was readjudicated and a May 2012 supplemental statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment records, service personnel records, and VA treatment records are associated with the claims folder. In July 2010, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the above stated issues were previously remanded in order for the RO/AMC to afford the Veteran the correct notice and provide VA examinations. Proper notice and VA examinations having been provided, the issues now return to the Board for review. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability (including persistent or recurrent symptoms of disability), (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA examinations were provided in November 2010. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2012). The Board finds that with respect to the issues of entitlement to an initial rating, in excess of 10 percent, for peripheral neuropathy of the right and left lower extremities and entitlement to service connection for prostatic hypertrophy, the VA examinations, including opinions, obtained in this case are more than adequate, as they collectively are predicated on a full reading of the VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record and the statements of the Veteran, and provide a complete rationale for any opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2012). The Veteran has been afforded a hearing before an Acting Veterans Law Judge (AVLJ) in which he presented oral argument in support of his initial rating claims for peripheral neuropathy and service connection claim for benign prostatic hypertrophy. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ (or AVLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The AVLJ also did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and symptoms relating to his prostate disorder since service and the present severity of the peripheral neuropathy. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its July 2010 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis I. Increased Ratings-Peripheral Neuropathy Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then-current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's service-connected peripheral neuropathy of the right and left lower extremities. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where there has been a disagreement with an initially assigned disability evaluation, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for the Veteran's service-connected peripheral neuropathy of the right and left lower extremities. See also, Hart v. Mansfield, 21 Vet. App. 505 (2007). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, as noted above, separate ratings can be assigned for separate periods of time based on the facts found, i.e., "staged" ratings. Fenderson v. West, supra; 38 C.F.R. § 4.2 (2011). As noted above, the Veteran's original claim for service connection for peripheral neuropathy of the right and left lower extremities was granted with a 10 percent rating assigned to each lower extremity for the entire appeal period. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2011). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is currently service connected for peripheral neuropathy of the right lower extremity currently rated as 10 percent disabling and peripheral neuropathy of the left lower extremity currently rated as 10 percent disabling. The Veteran is currently rated under Diagnostic Code 7913-8520. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this instance, the Veteran's peripheral neuropathy was caused by his diabetes mellitus, type II, which is addressed under Diagnostic Code 7913. Diagnostic Code 8520 pertains to paralysis of the sciatic nerve. Under this provision, mild incomplete paralysis warrants a 10 percent disability evaluation; moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent disability evaluation; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability evaluation. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in October 2007 pertaining to his diabetes mellitus, Type II, which addressed his bilateral peripheral neuropathy. The Veteran reported tingling in his feet at night with no pain, numbness, weakness, or clumsiness in his feet. He further noted that the tingling in his feet was relieved by walking. Upon physical examination it was noted that the Veteran had some thickening of some toenails with an easily palpable posterior tibial pulse on both sides and the dorsalis pedis on the left was easily felt. The skin of the feet was healthy and there were no calluses. The Veteran had a normal gait, no tremor, deep tendon reflexes were 2+ in the lower extremities, including the ankles. There was a slight decrease to vibration and light touch in the toes only. The Veteran was diagnosed with mild peripheral sensory neuropathy. The Veteran was afforded a VA peripheral nerve examination in July 2008. The examination focused primarily on the Veteran's upper extremities, but did note that he had foot numbness that he would have to walk off. The Veteran described the numbness as being 8/10 severity and further noted that after the numbness subsided he would have pain as the feeling came back. The pain was noted as 7/10. The numbness and pain interfered with the Veteran's sleep. It was unclear from the examination report if the reported numbness and pain referred to the Veteran's upper extremities, lower extremities, or both. Frequency was noted as nightly with duration of 15-40 minutes that can last up to 1-2 hours. He reported that he could go back to sleep after walking. Upon examination it was noted that left doralis pedis was easily felt but difficult on the right. Skin on the feet was healthy looking but did have nail fungus appearing on both great toes. Neurological testing indicated that the Veteran continued to have decreased vibratory and light touch sensation in the toes in particular. Phalan's sign and Tinel signs were negative. Pinprick was intact but decreased more in the feet. The Veteran was diagnosed with bilateral peripheral neuropathy of the lower extremities, but the examination did not specifically note the severity of the peripheral neuropathy of the lower extremities. The Veteran was most recently afforded a VA peripheral nerve examination in November 2010. The Veteran reported that his arms, legs, and feet went to "sleep" during the night and kept him awake. He reported that he often had to have his arms, legs, and feet massaged to calm the tingling sensation. He also reported swelling of the lower extremities with prolonged sitting activities causing decreased sensation. The examiner noted that as most symptoms occurred at night, there was no real interference with daily activity. However, the swelling occurred during the day and was therefore noted to be different. The examiner noted it was the Veteran's distal peripheral nerves that were involved. The Veteran's motor strength was intact, reflexes 2+ and symmetric at the biceps, triceps, and brachioradialis sites as well as the knees and ankles. Sensation was intact to light touch and sharp with minimal decrease in vibration noted distally at the great toe. It was noted the Veteran had paresthesias but no joint involvement. There was no limitation of motion. The Veteran was diagnosed with paresthesias which were noted as intermittent in nature and the only abnormality on examination was mildly decreased vibratory sensation distally in the lower extremities. Clinical findings were insufficient to diagnose peripheral neuropathy given normal strength, sensation, and reflexes in the upper and lower extremities. Electrodiagnostic testing could be considered for further evaluation, however, it was suggested that observation was recommended given intermittent clinical findings. With consideration of the above, the Board notes that the Veteran is not entitled to a rating in excess of the currently assigned 10 percent for his peripheral neuropathy on either the right or left lower extremity. In this regard the Board notes that the objective evidence fails to demonstrate that the Veteran has moderate peripheral neuropathy in either lower extremity. Specifically the Board notes that the Veteran's peripheral neuropathy was noted to be mild in the October 2007 VA examination report. While the July 2008 VA examination did not specifically note the severity, it did note that the Veteran could easily address the numbness in his feet by walking around and neurological testing showed only a decrease in vibratory and light touch sensation with pinprick intact. There was no indication that the Veteran had moderate incomplete paralysis. And the November 2010 VA examination noted that clinical findings were insufficient to even diagnose the Veteran with peripheral neuropathy given the only intermittent mildly decreased vibratory sensation distally in the lower extremities. With consideration of the above, the Veteran is not entitled to a higher rating than the currently assigned 10 percent for peripheral neuropathy in the right lower extremity or the 10 percent for peripheral neuropathy in the left lower extremity. While the Board finds that the Veteran meets the criteria for a 10 percent rating, a rating in excess of 10 percent is not warranted for any period of time. 38 C.F.R. § 4.124a, Diagnostic Code 7913-8520 (2012); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has reviewed the remaining evidence of record for evidence of other functional impairment which might warrant a higher or separate rating(s). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). None of the VA examination reports note any additional neurological or orthopedic impairment. Thus, there does not appear to be any further impairment(s) associated with his service-connected right and left lower extremity peripheral neuropathy. Finally there is no indication that the Veteran's peripheral neuropathy of the right and left lower extremity affects the Veteran's employability. The Board acknowledges the Veteran's statements regarding the severity of his peripheral neuropathy. The Veteran contends that his peripheral neuropathy is far more severe than the ratings he is currently assigned indicate. The Board further notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In this regard, the Board acknowledges the Veteran's statements that his service-connected peripheral neuropathy is worse than the assigned ratings. However, the Board places significantly more weight on the objective clinical findings reported on examination than the Veteran's statements as the Veteran is not shown to have the requisite training to determine the severity level of his service-connected bilateral lower extremity peripheral neuropathy. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.124a with respect to determining the severity of his service-connected bilateral lower extremity peripheral neuropathy. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). In evaluating the Veteran's claims for higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral lower extremity peripheral neuropathy, with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this regard the Board notes that there is no additional symptomatology associated with the Veteran's bilateral lower extremity peripheral neuropathy, including numbness and decreased neurological sensation that is not adequately addressed by the schedular criteria. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Indeed, it does not appear from the record that he has been hospitalized at all for that disability. There is no persuasive evidence in the record to indicate that this service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disability have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit of the doubt doctrine, however, is not applicable in this instance as the preponderance of the evidence is against a rating in excess of that currently assigned for the entire appeal period. II. Service Connection-Prostatic Hypertrophy The Veteran contends that he has prostatic hypertrophy that is directly related to his active duty service or alternatively presumptively related to his active duty service as a result of herbicide exposure. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may 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) (2012). In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As prostatic hypertrophy is not a chronic disease under § 3.309(a), the Court finds as a matter of law that the Veteran may not establish continuity of symptomatology in lieu of medical nexus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). There are statutory presumptions and VA regulations implementing them, that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d) (2012). In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2012). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). 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. Id. The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) (2010) are satisfied: chloracne or other acneform disease consistent with chloracne if manifest to a degree of 10 percent within one year of date of last exposure, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2012). On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a regulatory established presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. In this instance, the Board notes that the Veteran contends that he had prostate cancer in 2005. However, as will be further explained below, there is no evidence that the Veteran has been diagnosed with prostate cancer. Additionally it is noted that the Veteran's current diagnosis is prostatic hypertrophy which is not a disorder considered to be a presumptive disorder. Therefore, the Veteran enjoys no presumption provided by law or regulation in 38 U.S.C.A. § 1116(f) (West 2002) or 38 C.F.R. § 3.307(6)(iii) (2012). The Board will limit its analysis to a direct service connection as required by Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. The Veteran contends that he has a prostate disorder that is related to his active duty service to include as due to herbicide exposure. In this regard the Veteran has also stated that he was diagnosed with prostate cancer in 2005. The clinical treatment reports of record note that the Veteran is currently diagnosed with benign prostatic hypertrophy. See the November 2010 VA examination. As such the Board notes that the Veteran has a current diagnosis as required by 38 C.F.R. § 3.303. While there is evidence of a current diagnosis, there is no medical evidence that supports the Veteran's contentions that he was diagnosed with prostate cancer. The Veteran's service treatment records are silent for any complaints or diagnosis of any prostate condition. In this regard the Board notes that both the June 1963 entrance examination and May 1966 exit examination are absent any complaints or diagnosis of a prostate condition. The Veteran's service treatment records indicated that he was treated multiple times, in August 1963, January 1964, and November 1965 for urethral discharge and urethritis. There is nothing in the record however that indicated that there was any problem with the Veteran's prostate associated with these diagnoses. The Board notes that the VA treatment records indicated that the Veteran had nocturia at night. A January 2007 treatment report noted that the Veteran's prostate-specific antigen (PSA) test on that date was abnormal, but a rectal examination noted a smooth, nontender prostate with no nodules. An October 2007 VA examination associated with diabetes mellitus, Type II, noted that the Veteran had an enlarged prostate and frequent problems with voiding with severe urinary frequency and hesitancy, but not incontinence. Upon examination of the genitourinary system it was noted he had no change in bowel habits and no nocturnal diarrhea. The Veteran was afforded a VA genitourinary examination in November 2010. The examination report noted urinary urgency hourly during the night and day. After a thorough examination and a review of the Veteran's claims file, the Veteran was diagnosed with benign prostatic hypertrophy and opined that it was not likely that any current prostatic hypertrophy was manifested during the Veteran's active duty service as he was in active duty service when he was 18-21 years of age and prostatic hypertrophy was not likely at that young age. With consideration of the above, the Board notes that the probative evidence fails to demonstrate that the Veteran has a prostate disorder that is related to his active duty, to include as due to herbicide exposure. In this regard the Board notes the negative nexus opinion provided in the November 2010 VA examination and finds that the November 2010 VA examiner's opinion is probative medical evidence addressing the etiology of the Veteran's benign prostatic hypertrophy. The report reveals that the examiner conducted a thorough examination of the Veteran and provided a full and complete rationale for his opinion. In addition, the opinion is highly probative because it was based on a review all of the medical evidence of record. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). The Board notes, as previously stated, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has benign prostatic hypertrophy that is related to incidents of urethral discharge in service falls outside the realm of common knowledge of a lay person. Additionally, the Veteran is not competent to diagnose himself with prostate cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, although the statements of the Veteran offered in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a diagnosis with regard to the Veteran's claim for service connection for benign prostatic hypertrophy. With consideration of all of the above, the Board notes that the more probative evidence fails to demonstrate that the Veteran has benign prostatic hypertrophy that is directly related to his active duty service or presumptively related as a result of exposure to herbicides. Therefore, the Board finds that the Veteran's claim for service connection for benign prostatic hypertrophy to include as due to herbicide exposure must be denied. Under the above circumstances, the Board finds that the more probative evidence does not support the Veteran's claims of service connection for benign prostatic hypertrophy on a direct or presumptive service connection basis. In this regard, the Board notes that the more probative evidence indicates that while there is a current diagnosis with regard to benign prostatic hypertrophy, the probative evidence fails to indicate that the Veteran's benign prostatic hypertrophy is etiologically related to his active duty service, to include as due to herbicide exposure. The Board has considered the benefit of the doubt rule; however, as a preponderance of the evidence is against this claim such rule does not apply and the claim must be denied. 38 U.S.C.A. §5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial rating, in excess of 10 percent, for peripheral neuropathy of the left lower extremity is denied. An initial rating, in excess of 10 percent, for peripheral neuropathy of the right lower extremity is denied. Service connection for prostatic hypertrophy, to include as due to herbicide exposure, is denied. REMAND Unfortunately, the Board finds that additional development is warranted for the Veteran's claim for entitlement to service connection for hypertension, to include as secondary service-connected disabilities. The Veteran contends that hypertension is secondary to service- connected disabilities to include diabetes mellitus, type II, and posttraumatic stress disorder (PTSD). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Specifically, the Board notes that the Veteran's original claim for entitlement to service connection for hypertension included as secondarily due to PTSD. Service connection as secondarily due to PTSD was originally denied because the Veteran was not service-connected for PTSD. However, the Board notes that in the July 2010 Board decision, service connection for PTSD was granted. The Veteran continues to maintain that his hypertension is secondary to his service-connected disabilities. The issue of entitlement to service connection was previously remanded in the July 2010 Board decision to obtain an etiological opinion with regard to whether the Veteran's hypertension is secondarily related to his service-connected diabetes mellitus, type II. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the issue of whether the Veteran's hypertension is related to his diabetes mellitus, type II, the Veteran was afforded a VA examination in February 2005. The examiner reviewed the Veteran's claims file and noted that the Veteran was diagnosed twelve years ago. The Veteran was treating his hypertension with Lisinopril, Felodipine, HCTZ at the time of the examination. The Veteran denied any side effects. The Veteran's blood pressure readings the day of the examination were 126/77, 116/73, 119/70. The examiner diagnosed the Veteran with hypertension. The examiner opined that the Veteran's hypertension was not likely related to any other disorder. With regard to whether the Veteran's hypertension was related to his diabetes mellitus, type II, the examiner noted that the Veteran was diagnosed with hypertension prior to being diagnosed with diabetes mellitus, type II, and indeed it was not clear from the record that the Veteran had diabetes mellitus, type II. The Veteran was then afforded a VA examination in October 2007. The examination primarily addressed the Veteran's diabetes mellitus, Type II, but also provided an opinion with regard to the etiology of the Veteran's hypertension. The examiner noted that the Veteran was diagnosed with hypertension in 1979 or 1980, but that his condition was not related to his diabetes because authorities have never found that diabetes is a cause of hypertension. The examiner cited Harrison's Principles of Internal Medicine textbook. A July 2008 VA examination also noted that the Veteran's hypertension was not related to his diabetes because it pre-dated his diabetes. The Veteran was again afforded an examination in November 2010. The Veteran reported that he was diagnosed with hypertension in approximately 2004 and that his condition had gradually worsened to the point where the Veteran was currently taking three medications for hypertension. The examiner noted that the record indicated that the Veteran had likely had hypertension for much longer considering a 2005 VA examination noted that he had been diagnosed for 12 years prior to that examination. As such the examiner determined that the Veteran had been diagnosed with hypertension for 17 years. The examiner noted the Veteran was treating his hypertension with Amlodipine, Metoprolol, and Minoxidil. The examiner noted the Veteran's blood pressure was 155/88 at the time of the examination; three readings were not provided. The Veteran was diagnosed with hypertension and concurred with the previous February 2005 VA examiner's opinion that the Veteran's hypertension diagnosis preceded his diabetes mellitus, type II, diagnosis and as such is a separate entity, and not likely related to the diabetes diagnosis. As the November 2010 VA examiner failed to provide an opinion regarding whether the Veteran's hypertension was aggravated by his service-connected diabetes mellitus, Type II, an addendum opinion was obtained in February 2012. After noting the Veteran's medical history the examiner opined that as the Veteran's Type II diabetes was mild and recently diagnosed, it less likely as not aggravated the Veteran's hypertension. As such, the Board finds that the issue of whether the Veteran's hypertension is the result of or aggravated by his diabetes mellitus, type II, has fully been addressed. However, there is no opinion as to whether the Veteran's hypertension is secondarily related to or aggravated by his service-connected PTSD. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such another VA examination, to include an etiological opinion is required to address whether the Veteran's hypertension is related to or aggravated by his service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran identify all records of VA and non-VA health care providers who have treated him for his hypertension. After obtaining any appropriate authorizations for release of medical information, the RO must obtain records not currently associated with the claims file from each health care provider the Veteran identifies. Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A(b)(3). 2. The Veteran should be afforded a VA examination to address his hypertension. The claims folder should be forwarded to the examiner for review of all pertinent documents therein. The examiner should be asked to confirm in his/her written report that he/she conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) opine whether the Veteran's hypertension is at least as likely as not (50 percent chance or greater) related to the Veteran's service- connected PTSD. b) if not, opine whether any such hypertension is at least as likely as not (50 percent chance or greater) aggravated by the Veteran's service-connected PTSD; and c) provide detailed rationale, with specific references to the record, for the opinion. 3. After completion of the foregoing, readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs