Citation Nr: 1601874 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 14-17 032 ) 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 pulmonary tuberculosis. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 3. Entitlement to higher special monthly compensation based upon a loss of use of a creative organ. 4. Entitlement to special monthly compensation for the loss of use of a creative system. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1960 to May 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision promulgated by the Department of Veterans Affairs (VA), Regional Office (RO), in Manilla, the Republic of the Philippines. In January 2015, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the above hearing, the undersigned clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. The issue of service connection for hypertension, to include as secondary to a service-connected disability, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A positive purified protein derivative (PPD) test is not a disability subject to service connection; there is no evidence that the Veteran experiences any current disability as a result of his in-service PPD test; and active pulmonary tuberculosis did not manifest within three years of service discharge. 2. The Veteran has already been awarded a special monthly compensation award at the "k" level for loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for pulmonary tuberculosis are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for higher special monthly compensation based upon a loss of use of a creative organ are not been met. 38 U.S.C.A. §§ 1114 (k), 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350 (2015). 3. The criteria for special monthly compensation for the loss of use of a creative system are not been met. 38 U.S.C.A. §§ 1114 (k), 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the 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. Id. at 486. By letters dated in January 2012, May 2012, October 2012, and November 2014 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requires generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board acknowledges that service treatment records reflect the Veteran had a positive PPD test while on active duty in September 1973. However, this is not the same thing as a medical diagnosis of active tuberculosis. A PPD test result is considered to be a laboratory finding used in exploring a possible diagnosis of tuberculosis. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1506, 1979 (32nd ed. 2012). Service connection applies only to diseases and the residuals of injury, not symptoms or clinical findings found in laboratory test results. See 38 C.F.R. §§ 4.1, 4.10; see also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities, and are not appropriate entities for the rating schedule). Thus, service connection is not available based solely on a showing of a positive PPD. Rather, the record must reflect this positive PPD test was evidence that the Veteran developed a chronic disability such as pulmonary tuberculosis. A thorough review of the evidence of record does not reflect the Veteran experiences any current disability as a result of his in-service PPD test; and active tuberculosis did not manifest within three years of service discharge. See 38 C.F.R. §§ 3.307, 3.309. Both in-service and post-service medical treatment records are all negative of a diagnosis of symptoms associated with pulmonary tuberculosis. The Veteran's lungs and chest have been clinically evaluated as normal on numerous subsequent diagnostic testing. Additionally, during the February 2015 Board hearing, the Veteran himself acknowledged that he had never developed active disease. In short, even though the Veteran did have an in-service positive PPD test, neither tuberculosis nor any other chronic pulmonary disorder has been shown since that time; and the Veteran's own hearing testimony supports this finding. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board acknowledges that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had pulmonary tuberculosis or any other pulmonary disability at any time during the pendency of this claim. Inasmuch as there is no evidence of a current disability as a result of the in-service positive PPD test, or current pulmonary disease, the Board finds that the preponderance of the evidence is against this claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2015). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2015); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where a Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2015). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2015). It is possible for a Veteran to have separate and distinct manifestations from the same injury that 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); 38 C.F.R. § 4.14 (2015) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran asserts that he is entitled to a higher level of special monthly compensation based upon a loss of use of a creative organ, as well as additional special monthly compensation based upon a loss of use of a creative system. During the January 2015 Board hearing, he described that as a result of his service-connected prostate cancer, he had experienced a complete loss of his reproductive system. In his January 2014 claim, he described having undergone a bilateral orchiectomy, as well as the loss of use of the epididymis gland, vas deferens, and accessory (seminal/vesicle) glands. Service connection for prostate cancer has been established, rated at 100 percent as of December 18, 2010. Additionally, service connection for erectile dysfunction, as well as, residual scars associated with prostate cancer has also been established. The Veteran is in receipt of special monthly compensation at the K-1 level under 38 U.S.C. 1114, subsection (k) and 38 CFR 3.350(a) on account of the loss of use of a creative organ. VA law provides that entitlement to special monthly compensation is warranted if a Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a) (2015) (emphasis added). The regulations direct that the special monthly compensation is available regardless of whether the loss of use is for one or more creative organs as the criteria is disjunctive, i.e., separated by the word "or." Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that: (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the Veteran, establishes the absence of spermatozoa. When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. 38 C.F.R. § 3.350(a)(1)(i-ii). Special monthly compensation grants an additional level of compensation to Veterans above the basic levels of compensation (0 percent -100 percent) for various types of losses or levels of impairment solely due to service-connected disabilities. However, the law provides that only one "k" award can be granted for loss or loss of use of a creative organ or organs. That is, VA law does not provide for any higher level of special monthly compensation based on loss or loss of use of a creative organ or organs. See 38 U.S.C.A. §§ 1114(k) - (s) (West 2014); 38 C.F.R. § 3.350(a) - (i) (2015). The Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In such a case, where the law is dispositive, the higher level of special monthly compensation claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for pulmonary tuberculosis is denied. Higher special monthly compensation based upon a loss of use of a creative organ is denied. Special monthly compensation for the loss of use of a creative system is denied. REMAND With regard to the issue of service connection for hypertension, during the Veteran's January 2015 Board hearing, he asserted that his hypertension may be secondary to a service-connected disability, to specifically include the service-connected prostate cancer. Service connection has also been established for brain tumor with partial seizure associated with prostate cancer; posttraumatic stress disorder (PTSD); bilateral sensorineural hearing loss; traumatic arthropathy of the first metatarsal of the left foot, with old healed fracture deformity; peripheral neuropathy of the right upper extremity; tinnitus; erectile dysfunction associated with prostate cancer; residual scar, status post transurethral resection of the prostate (TURP) associated with prostate cancer; residual scar status post TURP; residuals of smash injury of the left thumb; and scar residual of smash injury of the left thumb. A medical opinion has not been provided as to whether the Veteran's asserted hypertension was either caused by or is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his hypertension should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The AOJ shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of his current hypertension. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran's diagnosed hypertension had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's diagnosed hypertension was caused (in whole or in part) by a service-connected disability? Service connection has been established for prostate cancer; brain tumor with partial seizure associated with prostate cancer; PTSD; bilateral sensorineural hearing loss; traumatic arthropathy of the first metatarsal of the left foot, with old healed fracture deformity; peripheral neuropathy of the right upper extremity; tinnitus; erectile dysfunction associated with prostate cancer; residual scar, status post TURP associated with prostate cancer; residual scar status post TURP; residuals of smash injury of the left thumb; and scar residual of smash injury of the left thumb. (c) Is it at least as likely as not that the Veteran's diagnosed hypertension is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability? If the Veteran's current hypertension is aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for hypertension in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The AOJ will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time must be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs