Citation Nr: 1761069 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 15-12 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a prostate condition, to include prostate cancer, to include as due to Agent Orange exposure. 2. Entitlement to service connection for a prostate condition, to include prostate cancer, to include as due to Agent Orange exposure. 3. Entitlement to an evaluation higher than 10 percent for right lower extremity varicose veins. REPRESENTATION Appellant represented by: Harry J. Binder, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from August 1957 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is of record. The issues of entitlement to an increased evaluation for all of the Veteran's service-connected disabilities, not currently on appeal, have been raised by the record in a December 2014 Notice of Disagreement (NOD), but have not yet 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) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). As will be explained in the REMAND portion of the decision below, the Board is interpreting the service connection claim on appeal as encompassing diagnoses for a prostate condition other than prostate cancer, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In other words, given what the medical evidence in the claims file shows, the Board is considering "alternative current conditions within the scope of the filed [prostate cancer] claim." Clemons, 23 Vet. App. at 5. FINDINGS OF FACT 1. In a rating decision issued in July 2005, the RO denied service connection for prostate cancer. The Veteran did not timely perfect an appeal of this issue, and no new and material evidence was received within one year of this determination. 2. Evidence received since the final July 2005 rating decision is both new and material, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a prostate condition, to include prostate cancer, to include as due to Agent Orange exposure. 3. The Veteran's varicose veins of the right lower extremity has primarily been manifested by aching and fatigue of the leg after prolonged standing or walking, with symptoms relieved by elevation or compression hosiery; it has not resulted in persistent edema, stasis pigmentation or eczema, or persistent ulceration. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria for reopening the claim of entitlement to service connection for a prostate condition, to include prostate cancer, to include as due to Agent Orange exposure, have been met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2017). 2. The criteria for an evaluation higher than 10 percent for right lower extremity varicose veins have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.2, 4.7, 4.104, Diagnostic Code 7120 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In claims to reopen a finally disallowed claim, VAOPGCPREC 6-2014 concluded that the plain language of 38 U.S.C. § 5103 (a)(1) does not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim. In other words, this opinion holds that the directives of Kent v. Nicholson, 20 Vet. App. 1 (2006) are no longer controlling insofar as it construed the former § 5103(a) to require that VA provide case-specific notice to a claimant in a claim to reopen. For increased rating claims, 38 U.S.C. § 5103 (a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Board notes that in a March 2014 letter, the Veteran was informed of what evidence was required to substantiate his claims, and of his and VA's respective responsibilities in obtaining evidence. Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in a February 2015 Statement of the Case (SOC), as well in additional SSOCs. He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify is satisfied. Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, as well as his own written contentions. The Veteran has not identified, and the record does not otherwise indicate, any other evidence relevant to his claim that has not been obtained. Further, the Veteran was afforded VA compensation examinations in March 2014 and December 2017 to address the current severity of his service-connected varicose veins of the right lower extremity. Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. New and Material Evidence to Reopen Service Connection Claims The Veteran's original claim of entitlement to service connection for prostate cancer was denied in a July 2005 rating decision. Although notified of the denial and of his appellate rights, the Veteran did not timely perfect an appeal to the Board. Therefore, the RO's July 2005 decision is final. 38 C.F.R. § 20.1103. VA must reopen a finally adjudicated claim when new and material evidence is submitted regarding the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence that was not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the prior final denial, and it must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of reopening a claim, the evidence is presumed credible unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In a February 2015 SOC, the RO determined that evidence received since the prior finally adjudicated decision of record was not new and material evidence sufficient to reopen the Veteran's claim. Irrespective of any decision by the RO to reopen an appeal, the Board must first make the threshold determination of whether there is new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Among the relevant evidence added to the record since the last final denial are VA treatment records showing a diagnosis of a prostate condition, as well as the Veteran's October 2017 testimony before the undersigned VLJ, addressing his claimed conditions. In this case, the Board finds that this evidence is new, as it was not previously associated with the record. Additionally, this evidence is also material, as it raises a reasonable possibility of substantiating the Veteran's claim. Therefore, the Board finds that new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a prostate condition, to include prostate cancer, to include as due to Agent Orange exposure. To this extent only, the benefit sought on appeal is granted. III. Legal Criteria for Increased Rating Claim When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of a disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. If the evidence for and against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. IV. Varicose Veins of the Right Lower Extremity The Veteran seeks an evaluation higher than 10 percent for his service-connected varicose veins of the right lower extremity. Pursuant to Diagnostic Code 7120, a 10 percent evaluation is warranted for intermittent edema of extremity, or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent evaluation is warranted for varicose veins manifested by persistent edema, incompletely-relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation requires persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation warrants persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent evaluation requires massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. The Veteran was afforded a VA examination in March 2014. He reported that his legs constantly hurt and cramp a lot, but denied any swelling and statis ulceration or pigmentation. He stated that he wears a support hose all the time. Following physical evaluation, the examiner indicated that the Veteran's varicose veins were manifested by aching and fatigue of the right leg after prolonged standing or walking, with these symptoms being relieved by elevation or compression hosiery. More recently, the Veteran was afforded another VA compensation examination in December 2017. He reported going to the gym three days a week and running on the treadmill approximately 30-45 minutes depending on how his knees feel. On examination, the examiner indicated that the Veteran has a few mild visible, palpable varicose veins on the posterior calves which were asymptomatic on both legs. The examiner further noted that they were not tender, red, or inflamed. In order to warrant an evaluation higher than 10 percent under Diagnostic Code 7120, the evidence would need to show that the Veteran's varicose veins of the right lower extremity shows persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. At the outset, the Board finds that the VA compensation examinations described above, collectively, were thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's claim for increase. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the relevant history of the Veteran's varicose veins of the right leg, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In light of the foregoing, the Board concludes that the evidence of record does not support an evaluation higher than 10 percent under Diagnostic 7120 at any point during the period on appeal. As discussed above, the competent medical evidence reflects that the Veteran's symptoms are relieved by elevation or compression hosiery. The evidence does not demonstrate any medical finding to show persistent edema or subcutaneous induration, and such symptoms are required to warrant a higher evaluation. To the contrary, on physical examination in March 2014, the VA examiner noted that there was no edema, ulceration or skin changes on either lower extremity. Likewise, the December 2017 VA examiner indicated that the varicose veins on both lower extremities were asymptomatic. The Board has reviewed the Veteran's remaining VA treatment records, but they do not indicate any symptoms of worse severity than those already discussed above. As there is no evidence that the Veteran suffers from stasis pigmentation and persistent edema, at any time, he does not meet the criteria for a 20 percent evaluation. In this regard, the current 10 percent evaluation takes into account the Veteran's symptoms of aching and pain as well as limited prolonged standing and walking. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for increase, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER 1. New and material evidence having been submitted, the claim of entitlement to service connection for a prostate condition, to include prostate cancer, to include as due to Agent Orange exposure, is reopened. 2. Entitlement to an evaluation higher than 10 percent for right lower extremity varicose vein is denied. REMAND VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4). In service-connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or a disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, the competent medical evidence of record reflects that the Veteran has been diagnosed with prostate hypertrophy with urinary obstruction. See, e.g., VA Treatment Record dated Feb. 18, 2011. As there is evidence of a current disability, a VA examination is necessary to determine the nature and etiology of the Veteran's prostate condition. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Finally, while on remand, the AOJ should also attempt to obtain the Veteran's updated medical records. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to this claim. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed prostrate condition, to include prostate cancer. His claim file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination for consideration and review of the pertinent history. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following: (a) Identify (by diagnosis) each prostate condition, to include prostate cancer and/or prostate hypertrophy with urinary obstruction, found/shown by the record. (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed prostate condition had its onset during service or is it otherwise etiologically related to service? The examiner is advised that the Veteran is competent to report injuries and symptoms and that her reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The absence of evidence of contemporaneous medical evidence in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. (c) Is it at least as likely as not that the Veteran's currently diagnosed prostate condition had its onset during the year immediately following his separation from active duty in January 1977? (d) Is it at least as likely as not that the Veteran's currently diagnosed prostate condition was either caused, or aggravated, by his service-connected diabetes mellitus? The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that the Veteran's diabetes mellitus has aggravated any diagnosed prostate condition, to include prostate hypertrophy with urinary obstruction, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. (e) Is it at least as likely as not that the Veteran's currently diagnosed prostate condition, was either caused, or aggravated, by his presumed exposure to herbicides during his Vietnam service? The Board notes that the absence of prostate hypertrophy with urinary obstruction from the list of presumptive conditions which are presumed to be the result of exposure to herbicides in Vietnam is not, by itself, a sufficient explanation for a negative opinion-i.e., if it is the examiner's opinion that the Veteran's prostate condition is not associated with his presumed exposure to an herbicide agent in Vietnam, then the examiner must do more to explain his or her opinion concerning the probability of a relationship between this particular Veteran's condition and his presumed exposure to herbicides than to indicate that the Veteran's prostate condition is not on the list of presumptive diseases. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 3. Ensure that the requested examination report is responsive to the applicable rating criteria. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 4. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claim remaining on appeal. If the issue remains denied, send the Veteran and his representative an SSOC, and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs