Citation Nr: 1528707 Decision Date: 07/06/15 Archive Date: 07/15/15 DOCKET NO. 10-03 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure. 2. Entitlement to an initial rating in excess of 30 percent for radiation proctitis. 3. Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer, status post radiotherapy. 4. Entitlement to an initial rating in excess of 10 percent for chronic headaches. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from July 1954 to October 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California that granted service connection for chronic headaches, and assigned an initial 10 percent rating, and denied service connection for peripheral neuropathy. These matters also are on appeal from an April 2014 rating decision. Notice of the decision was issued on July 8, 2014. That decision granted service connection for residuals of prostate cancer, status post radiotherapy, and assigned an initial 20 percent rating based on voiding dysfunction and granted service connection for radiation proctitis, associated with service-connected residuals of prostate cancer, and assigned an initial 30 percent rating, each effective August 27, 2007. The Veteran disagreed with this decision in August 2014. The RO issued a statement of the case on those claims and claims for higher initial rating for erectile dysfunction and whether special monthly compensation for loss of use of creative organ was correct in October 2014. The Veteran testified at the May 2015 Board hearing about the initial ratings assigned for his residuals of prostate cancer and radiation proctitis. Having reviewed the claims file, to include the transcript of the Veteran's May 2015 hearing testimony, the Board finds that testimony constituted a substantive appeal on the claims for initial higher ratings for residuals of prostate cancer and radiation proctitis. In May 2015, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The issues of entitlement to effective dates earlier than August 27, 2007, for service connection for residuals of prostate cancer and radiation proctitis have been raised by the record in the May 2015 Board hearing transcript, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to initial higher ratings for chronic headaches, residuals of prostate cancer, and radiation proctitis, are REMANDED to the AOJ. FINDINGS OF FACT There is no evidence that the Veteran has ever had or been diagnosed with peripheral neuropathy. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a November 2007 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent April 2014 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2014). Service connection may be presumed for certain chronic diseases, including peripheral neuropathy, which develop to a compensable degree within one year after separation from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2014). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2014). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2014). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2014); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for Veterans who served in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2014). If a Veteran was exposed to a herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2014). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. Notice, 79 Fed. Reg. 20,308 (2014). Pursuant to 38 C.F.R. § 3.309(e), early-onset peripheral neuropathy must manifest to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii) (2014). A recent amendment to the regulation replaced the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed a note with the requirement that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013). It was further noted that the amendment clarified that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it does not change the requirement that peripheral neuropathy must have become manifest to a degree of 10 percent or more within one year after a Veteran's last in-service exposure in order to qualify for the presumption of service connection. A September 29, 2010, National Academy of Sciences report, Veterans and Agent Orange: Update 2010, was noted to have found that evidence did not support an association between herbicide exposure and delayed-onset peripheral neuropathy, which was defined as having its onset more than one year after exposure. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served 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(a)(6)(iii) (2014). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to that exposure. Brock v. Brown, 10 Vet. App. 155 (1997); Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994), 38 U.S.C.A. §§ 1113(b), 1116 (West 2014); 38 C.F.R. § 3.303 (2014). The RO has determined that the Veteran had duty in the Republic of Vietnam for the purposes of the regulations governing the presumption of service connection for certain diseases due to herbicide exposure. 38 C.F.R. §§ 3.307, 3.309 (2014). The service medical records are negative for complaints, findings, or diagnosis of peripheral neuropathy. VA and private medical records are negative for complaints, findings, or diagnoses of peripheral neuropathy. The Veteran and representative have not submitted any evidence that the Veteran has, in fact, been diagnosed with peripheral neuropathy. Significantly, during the May 2015 Board hearing, the Veteran testified that no one had told him that he was diagnosed with peripheral neuropathy. He further testified that he had tender ends of his fingers and pain behind his leg that started when he came back from Vietnam. However, the Veteran is not competent to diagnosis himself with peripheral neuropathy as that issue involves a medically complex matter. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran complains of tenderness in his fingers and pain behind his leg, those are symptoms and not analogous to disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Symptoms of pain and tenderness, alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Congress has specifically limited entitlement to service connection for disease or injury incurred or aggravated in service to cases where such incidents have resulted in disability. 38 U.S.C.A. § 1110 (West 2014). Therefore, where, as here, competent evidence does not establish the presence of the disability for which service connection is sought, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Moreover, an examination is not necessary where there is no competent evidence of a current disability. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the instant case, the claim for service connection for peripheral neuropathy, to include as due to herbicide exposure, must be denied because the first essential criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection has not been met. The evidence does not show that the Veteran has, or has ever had, peripheral neuropathy, or that any peripheral neuropathy manifested to a compensable degree within one year following separation from service, or within one year following the last exposure to herbicides during service. Therefore, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for peripheral neuropathy, to include as due to herbicide exposure, is denied. REMAND With regard to the claims for higher initial ratings for service-connected chronic headaches, residuals of prostate cancer, and radiation proctitis, the Veteran testified that his symptoms for each disability had increased in severity, to include frequency and duration. In addition, the Veteran asserts, essentially, that his service-connected residuals of prostate cancer should include, or be rated using the criteria for, irritable bowel syndrome (IBS) and diverticulitis. Therefore, to ensure that the record has evidence of the current severity of the Veteran's service-connected chronic headaches, residuals of prostate cancer, and radiation proctitis on appeal, more contemporaneous examinations are needed. Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). With regard to service-connected radiation proctitis, that condition is rated by analogy and assigned a 30 percent rating under Diagnostic Code 7319 for irritable colon syndrome. This Diagnostic Code provides for a maximum 30 percent disability rating. To establish entitlement to an initial higher rating the evidence must show it is warranted under alternate criteria, or on an extra-schedular basis. To ensure that all due process requirements are met, and that the record before the examiner is complete, the Veteran should be provided with another opportunity to submit information or evidence pertinent to the claims remaining on appeal. Accordingly, the case is REMANDED for the following actions: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Provide the Veteran with an opportunity to identify and authorize VA to obtain any outstanding VA or non-VA medical records pertaining to his claims remaining on appeal. The Veteran should be advised that in the alternative, he may obtain and submit those records. 2. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to ascertain the current nature and severity of a service-connected chronic headache disability. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for any opinion expressed. The examiner should specifically identify the frequency and severity of headaches. Specifically, the examiner should state whether there are characteristic prostrating attacks occurring on an average once a month over the last several months or very frequent completely prostrating and prolonged attacks. The examiner should also state whether or not the headaches are productive of severe economic inadaptability. 3. Then, schedule the Veteran for a VA examination, by an examiner with the appropriate expertise to ascertain the current nature and severity of service-connected residuals of prostate cancer and radiation proctitis. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for any opinion expressed. a) The examiner is requested to identify all residuals of the service-connected residuals of prostate cancer, to include consideration whether the Veteran has irritable bowel syndrome and diverticulitis as a residual of prostate cancer. The discussion must include symptoms of urinary incontinence, urinary frequency, and obstructed voiding, and state their frequency and severity, if present. b) The examiner should identify all symptomatology and other manifestations directly related to the service-connected radiation proctitis, and state their frequency and severity. Such discussion should address bowel incontinence and malnutrition, if applicable. 4. Then, readjudicate the claims remaining on appeal, to include consideration of all applicable diagnostic codes and whether referral for extraschedular consideration is warranted. 38 C.F.R. § 3.321(b)(1) (2014). If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs