Citation Nr: 1759356	
Decision Date: 12/20/17    Archive Date: 12/28/17

DOCKET NO. 09-19 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUES

1. Entitlement to an effective date prior to May 9, 2012, for the grant of special monthly compensation (SMC) for loss of use of a creative organ.

2. Entitlement to an effective date prior to June 4, 2011, for establishing service connection for ischemic heart disease (IHD).

3. Entitlement to an effective date prior to June 21, 2012, for establishing service connection for left lower extremity (LLE) peripheral neuropathy.

4. Entitlement to an effective date prior to June 21, 2012, for establishing service connection for right lower extremity (RLE) peripheral neuropathy.

5. Entitlement to an initial rating for IHD in excess of 30 percent.

6. Entitlement to an initial rating for LLE peripheral neuropathy in excess of 20 percent.

7. Entitlement to an initial rating for RLE peripheral neuropathy in excess of 20 percent.
8. Entitlement to service connection for a skin condition, to include rashes, lipomas, edema, and statis dermatitis, including as due to in-service herbicide exposure.

9. Entitlement to service connection for prostatic hypertrophy, to include as due to renal cell carcinoma and in-service herbicide exposure.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1961 to November 1967, including in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and September 2008 rating decisions of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board has modified the Veteran's claims to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim").  

In July 2012, the Board remanded service connection for a skin rash to provide the Veteran proper notice under 38 C.F.R. § 3.159(e) that treatment records from one of his private medical providers could not be obtained. The Board also directed the RO to obtain further private treatment records. In a September 2016 decision, the Board directed the RO to issue a Statement of the Case (SOC) for the claim for service connection for prostatic hypertrophy; the claims for increased ratings for IHD, LLE peripheral neuropathy, and RLE peripheral neuropathy; and the claims for earlier effective dates for service connection for IHD, LLE peripheral neuropathy, and RLE peripheral neuropathy as well as for the grant of SMC for loss of use of a creative organ. The claims have been returned for further appellate review.

The issues of entitlement to service connection for a skin condition, to include rashes, lipomas, edema, and statis dermatitis, including as due to in-service herbicide exposure; and for prostatic hypertrophy, to include as due to renal cell carcinoma and in-service herbicide exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran filed a claim for service connection for erectile dysfunction on May 9, 2012.

2. The Veteran served in the Republic of Vietnam and has a covered herbicide disease.

3. VA received a claim of entitlement to service connection for renal cell disease associated with herbicide exposure on October 16, 2007.

4. Throughout the period of appeal, the Veteran's IHD did not result in chronic congestive heart failure (CHF); more than one episode of acute CHF in the past year; a workload of 5 or less metabolic equivalents of task (METs) resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 50 percent or less.

5. VA received an informal claim of entitlement to service connection for LLE peripheral neuropathy on June 21, 2012.
6. VA received an informal claim of entitlement to service connection for RLE peripheral neuropathy on June 21, 2012.

7. Throughout the period of appeal, the Veteran's LLE peripheral neuropathy was manifested by mild to moderate incomplete paralysis.

8. Throughout the period of appeal, the Veteran's RLE peripheral neuropathy was manifested by mild to moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for the assignment of an effective date prior to May 9, 2012, for the award of SMC for loss of use of a creative organ have not been met. 38 U.S.C. §§ 5110, 5103A (West 2014); 38 C.F.R. 3.159, 3.400 (2017).

2. The criteria for the assignment of an effective date of October 16, 2007, but no earlier, for the award of service connection for IHD have been met. 38 U.S.C.A. §§ 5110, 5103A (West 2014); 38 C.F.R. 3.159, 3.400, 3.816(c)(2) (2017).

3. The criteria for a rating in excess of 30 percent for IHD have not been met for any period of appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.104, Part 4, Diagnostic Code 7005 (2017).

4. The criteria for the assignment of an effective date prior to June 21, 2012, for the award of service connection for LLE peripheral neuropathy have been not met. 38 U.S.C.A. §§ 5110, 5103A (West 2014); 38 C.F.R. 3.159, 3.400 (2017).

5. The criteria for the assignment of an effective date prior to June 21, 2012, for the award of service connection for RLE peripheral neuropathy have been not met. 38 U.S.C.A. §§ 5110, 5103A (West 2014); 38 C.F.R. 3.159, 3.400 (2017).

6. The criteria for a rating in excess of 20 percent for LLE peripheral neuropathy have not been met for any period of appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.124a, Part 4, Diagnostic Code 8520 (2017).
7. The criteria for a rating in excess of 20 percent for RLE peripheral neuropathy have not been met for any period of appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.124a, Part 4, Diagnostic Code 8520 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2017).

This appeal arises from the Veteran's disagreement with the effective dates assigned following grants of entitlement to service connection for SMC for loss of use of a creative organ, IHD, LLE peripheral neuropathy, and RLE peripheral neuropathy as well as with the initial ratings assigned. Once service connection is granted and the claim is substantiated, as is the case here, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159 (b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). 
With regard to the duty to assist, the Veteran's VA and pertinent private treatment records have been secured to the extent possible. In an August 2008 letter to the Veteran, the RO indicated that VA treatment records from 1966 to 2004 were unavailable. See August 2008 Records Unavailability Finding; April 2008 Release of Information. Specifically, the RO found that all efforts to obtain the needed information have been exhausted and that further efforts are futile. As such, a remand to obtain such records is unwarranted.

In addition, VA medical opinions were obtained in July 2015. The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided detailed rationales for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has also not challenged the adequacy of the July 2015 medical opinions. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Thus, the Board finds that VA's duty to assist, including with respect to obtaining private treatment records and VA examinations, has been met. 38 C.F.R. § 3.159(c)(4) (2017).

II. Legal Criteria

Earlier Effective Dates

In general, the effective date for the grant of service connection is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b).

Some exceptions to 38 C.F.R. § 3.400 exist. If compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Moreover, if a claim is reviewed, upon the Veteran's request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review. 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997).

A second exception to the regulations regarding effective dates for disability compensation involves those veterans who qualify as eligible under 38 C.F.R. § 3.816. See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a "covered herbicide disease." 38 C.F.R. § 3.816(b). For Nehmer class members who have been granted service connection for a covered herbicide disease, the effective date can be earlier than the date of the liberalizing law if either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date VA received such claim or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). 

Where there is a question as to which of two evaluations shall be applied, 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 (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2017). 

The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lay statements may support a claim for service connection by establishing 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); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. 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).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

In the November 2013 rating decision, the RO granted service connection for IHD, LLE peripheral neuropathy, and RLE peripheral neuropathy. The RO assigned a disability evaluation of 30 percent for IHD, 20 percent for LLE peripheral neuropathy, and 20 percent for RLE peripheral neuropathy. The Veteran contends that his IHD and bilateral lower peripheral neuropathy are more disabling than currently evaluated.

The regulations establish a general rating formula for arteriosclerotic heart disease, including IHD and coronary artery disease (CAD). 38 C.F.R. § 4.104. Under the General Rating Formula, a 30 percent rating is warranted for arteriosclerotic heart disease resulting in a workload of greater than 5 METs, but not greater than 7 METs, that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. In addition, a 60 percent rating is warranted for arteriosclerotic heart disease resulting in more than one episode of acute CHF in the past year, or; a workload of greater than 3 METs, but not greater than 5 METs, that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, a 100 percent rating is warranted for arteriosclerotic heart disease resulting in CHF, or; a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Part 4, Diagnostic Code 7005 (2017).

Additionally, the regulations establish a general rating formula for paralysis of the sciatic nerve, including as due to peripheral neuropathy. 38 C.F.R. § 4.124a. Under the General Rating Formula, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy, and an 80 percent rating is warranted for complete paralysis. 38 C.F.R. § 4.124a, Part 4, Diagnostic Code 8520 (2017). 
The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element 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.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Court's interpretation of the criteria for rating psychiatric disabilities as set out in Mauerhan. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

III. Analysis

SMC for Loss of Use of a Creative Organ

The Veteran was first diagnosed with erectile dysfunction in a May 2008 VA examination conducted in connection with a service connection claim for renal cell carcinoma. See May 2008 Compensation and Pension Examination, Genitourinary. The Veteran did not file a claim for service connection for ED or for SMC for loss of use of a creative organ nor was one pending at the time.

In a February 2012 rating decision, the RO granted service connection for diabetes mellitus, type II. Subsequently, the Veteran filed a service connection claim for ED. An October 2013 private medical opinion determined that the Veteran's erectile dysfunction was secondary to his service-connected diabetes mellitus, type II. Accordingly, the RO granted service connection for an erectile dysfunction as well as SMC for loss of use of a creative organ. The RO assigned an effective date of May 9, 2012, the date it received the claim for service connection for erectile dysfunction.

Upon review of the record, the Board finds that the Veteran's SMC for loss of use of a creative organ has been assigned the earliest effective date permitted under VA regulations. See 38 C.F.R. § 3.400(b). As the regulations apply here, the effective date for the grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. The Board acknowledges the evidence of erectile dysfunction prior to the date of his claim. However, as none of the exceptions to the rule are applicable here, an effective date prior to May 9, 2012, is unwarranted, and the Board must deny the claim. See 38 C.F.R. § 3.400.

IHD

According to medical treatment records, the Veteran was first diagnosed with CAD in November 1991. See November 1991 letter from Dr. L.K. The Veteran did not file a service connection claim for IHD nor was one pending at the time.

The RO received a claim for service connection for renal cell carcinoma, to include as due to herbicide exposure, on October 16, 2007. The RO denied the claim in a September 2008 rating decision.

On June 4, 2012, the RO received a private medical opinion diagnosing the Veteran with aortic root dilation, mild to moderate aortic insufficiency, and mild to moderate mitral regurgitation. See June 4, 2012, IHD Disability Benefits Questionnaire. The opinion noted a left ventricular ejection fraction of 55 percent.

In October 2012, the Veteran was admitted to a private medical facility for chest pains. See October 2012 T.J.S. Community Hospital history and physical note. An electrocardiogram (EKG) revealed a ventricular rate of 51 percent. See October 2012 T.J.S. Community Hospital consultation report. 

The Veteran underwent a stress test with electrocardiographic analysis and myocardial perfusion imaging in November 2012. See November 2012 H.M. Hospital diagnostic report. The test recorded a left ventricular systolic function with ejection fraction of 56 percent. 

In a November 2013 rating decision, the RO granted service connection for IHD and rated the condition at 30 percent disabled. The RO assigned an effective date of June 4, 2012.
A VA heart examination took place in July 2015. See July 2015 Heart Conditions Disability Benefits Questionnaire. The examiner confirmed the Veteran's diagnosis of CAD. However, an exercise stress test was terminated due to symptoms unrelated to the cardiac condition. As a result, the examiner performed an interview-based METs test. The examiner recorded a workload of 3 to 5 METs that resulted in fatigue. However, he determined that the results were not solely due to the Veteran's CAD, but were also due to his COPD, morbid obesity, and deconditioning. The examiner concluded that the Veteran's CAD resulted in a workload of 7 to 10 METs, which he described as consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging.

In a September 2016 decision, the Board granted service connection for renal cell carcinoma associated with herbicide exposure.

The Veteran underwent an echocardiogram in May 2017. See August 2017 VA addendum note. The echocardiogram revealed a ventricular ejection fraction of 57 percent. A subsequent consultation note reported an exercise tolerance of 4 METs or less as well as complaints of chest pain and dyspnea. See September 2017 VA medicine PCC pre-op clinic consultation note.

Most recently, in October 2017, the RO granted an effective date of June 4, 2011, for establishing service connection for IHD under 38 C.F.R. 3.114(a).
At the outset, the Board finds that the Veteran is a Nehmer class member due to the fact that service connection for his CAD was granted based on his presumed exposure to herbicides while serving in the Republic of Vietnam. 38 C.F.R. § 3.816(b).

Upon review of the record, the Board finds, first, that an earlier effective date is warranted for establishing service connection for IHD. As stated above, 38 C.F.R. § 3.816(c)(2) provides for an effective date earlier than the effective date of the liberalizing law of the covered herbicide disease if the class member's claim for disability compensation for the covered herbicide disease was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. VA added IHD as a presumptive disability on August 31, 2010. See 75 Fed. Reg. 53202 (August 31, 2010). Thus, the effective date for establishing service connection for IHD is the later of the date VA received the Veteran's claim or the date his IHD arose.

Applying the Nehmer exception here, the Board finds that the proper effective date for establishing service connection for IHD is October 16, 2007. The Veteran filed an informal claim for service connection for IHD on June 4, 2012, after the effective date of the liberalizing law of IHD. However, according to the Nehmer Training Guide, if at the time of a prior decision on any compensation claim VA had medical evidence containing a diagnosis of a now-covered condition, the condition is then considered to have been part of the previously denied claim. Nehmer Training Guide, Veterans Benefits Administration (Revised February 10, 2011). The Veteran filed a service connection claim for renal cell carcinoma on October 16, 2007, which was then denied in September 2008, prior to the liberalizing law for IHD. At the time, medical records entailing the diagnosis of CAD were associated with the claims. See November 1991 letter from Dr. L.K. Therefore, for Nehmer purposes, the service connection claim for renal cell carcinoma filed on October 16, 2007, must be treated as including a service connection claim for IHD. Accordingly, the criteria of an effective date of October 16, 2007, for the award of service connection for IHD have been met. See 38 C.F.R. § 3.816(c)(2). 

Simultaneously, however, the Board finds that a rating in excess of 30 percent for IHD is unwarranted. At its lowest, the Veteran's documented left ventricular ejection fraction rate was at 51 percent. Moreover, while the July 2015 VA examination recorded a workload of 3 to 5 METs that resulted in fatigue, the result was partly due to the Veteran's COPD and obesity. See also August 2017 VA urology consultation note, active problems list; August 2017 VA internal medicine outpatient note. The examiner determined that his CAD resulted in a workload of 7 to 10 METs. Similarly, while an exercise tolerance of 4 METs was recorded in September 2017, the medical provider did not distinguish the effect the Veteran's CAD had from those from his other relevant conditions. Finally, the Board notes that the record does not reflect more than one episode of acute CHF in the past year or a diagnosis of chronic CHF. Accordingly, the criteria for a rating of 60 or 100 percent for IHD have not been met. In so finding, the Board has considered the arguments set forth in the November 2013 Notice of Disagreement. The Board has reviewed the evidence of record carefully and finds no competent evidence of a METs function specifically attributable to CAD that entitles the Veteran to a rating in excess of 30 percent for IHD.

The Board has also considered an extraschedular evaluation under 38 C.F.R. 
§ 3.321 (b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran has not asserted, and the evidence does not show, that his service-connected IHD is not adequately contemplated by the schedular rating criteria. Therefore, discussion of whether an extraschedular rating must be considered is not necessary. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Finally, 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 of entitlement to initial rating in excess of 30 percent for IHD, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


Bilateral Lower Peripheral Neuropathy

As stated above, the RO granted service connection for diabetes mellitus, type II, in a February 2012 rating decision. The RO assigned an effective date of October 11, 2011, the date it received the claim. The Veteran did not file a claim for service connection for LLE or RLE peripheral neuropathy nor was one pending at the time.

In January 2012, the Veteran underwent a VA examination in connection with his service claim for diabetes mellitus, type II. The examiner did not note any diabetic peripheral neuropathy. However, on February 9, 2012, the Veteran presented for a follow-up appointment with reports of bladder and bowel incontinence. See February 2012, VA renal clinic follow-up note. The physician provided an assessment of urinary and bowel incontinence concerning for peripheral neuropathy from diabetes or spinal disc disease. Id.; see also February 2012, VA renal note.

A private medical examination regarding peripheral neuropathy took place on June 15, 2012. See June 15, 2012, Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire. The examiner noted no movement bilaterally against resistance during knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion. In addition, the examiner noted that there was decreased sensation to light touch in bilateral knees, thighs, ankles, and lower legs as well as absent sensation to light touch in the bilateral feet and toes. The examiner also found cold sensation to be absent in both lower extremities. Further, the examiner observed trophic changes attributable to diabetic peripheral neuropathy. However, the examiner reported normal reflexes and the absence of paralysis in the lower extremities.

The Veteran reported for a check-up at a private medical facility in July 2012. See July 2012 T.J.S. Community Hospital history and physical note. The physician noted normal sensation, reflexes, coordination, muscle strength, and tone.
In a November 2013 rating decision, the RO granted service connection for LLE peripheral neuropathy and RLE peripheral neuropathy. The RO assigned a disability evaluation of 20 percent and an effective date of June 21, 2012, for both grants.

A VA examination took place in July 2015. See July 2015 Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire. An electromyography revealed abnormal bilateral lower extremities showing sensorimotor polyneuropathy. The examiner noted mild parenthesias and/or dysesthesias as well mild numbness of the bilateral lower extremities. The examiner also reported decreased sensation to light touch in the bilateral feet and toes. However, the examiner reported normal sensation to light touch in the bilateral knees, thighs, ankles, and lower legs. In addition, the examiner noted normal muscle strength and reflexes. No muscle atrophy or trophic changes were noted. The examiner determined that the Veteran had mild incomplete paralysis of the sciatic nerve bilaterally.

Most recently, in May 2017, the Veteran underwent a physical assessment during an emergency department visit. See May 2017 VA emergency department note. The examiner noted that the Veteran moved all extremities equally and purposefully without tremors or weakness. A contemporaneous nursing note reported optimal muscle tone in all 4 extremities with weakness and a slightly unsteady gait. See May 2017 VA nursing inpatient note.

Upon review of the record, the Board finds, first, that the Veteran's LLE peripheral neuropathy and RLE peripheral neuropathy have been assigned the earliest effective date permitted under VA regulations. See 38 C.F.R. § 3.400(b). The Veteran did not file a formal claim for service connection for bilateral lower peripheral neuropathy.  Rather, the RO treated the June 15, 2012, private medical opinion, which it received on June 21, 2012, as informal claims for LLE and RLE peripheral neuropathy. The Board acknowledges evidence of bilateral lower peripheral neuropathy in February 2012. However, because the earliest service connection claims for LLE peripheral neuropathy and RLE peripheral neuropathy was the June 21, 2012, private medical opinion, an earlier effective date is unwarranted, and the Board must deny the claims for an earlier effective date. See 38 C.F.R. § 3.400.

In addition, the Board finds that a rating in excess of 20 percent for the Veteran's LLE peripheral neuropathy and RLE peripheral neuropathy is unwarranted. The July 2015 VA examination noted mild incomplete paralysis of the sciatic nerve in the lower extremities. The examiner also reported mild numbness, paresthesias, and dysesthesias as well as decreased sensation to light touch in the bilateral feet and toes. Simultaneously, however, the examiner reported normal sensation to light touch in the bilateral knees, thighs, ankles, and lower legs. Moreover, the examiner noted normal muscle strength and reflexes as well as the absence of atrophy or trophic changes. While the June 2012 private medical examination revealed decreased muscle strength and sensation as well as trophic changes in the lower extremities, it found no paralysis due to peripheral neuropathy. Further, the Veteran's VA treatment records during the period of appeal do not reflect more severe symptoms, such as complete paralysis. See May 2017 VA emergency department note; May 2017 VA nursing inpatient note; July 2012 T.J.S. Community Hospital history and physical note. In considering all of the evidence of record, the Board finds that the Veteran's symptoms are consistent with a rating no greater than 20 percent for LLE and RLE peripheral neuropathy. 38 C.F.R. §§ 4.2, 4.6, 4.124a, Part 4, Diagnostic Code 8520.

The Board has considered an extraschedular evaluation under 38 C.F.R. 
§ 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran has not asserted, and the evidence does not show, that his service-connected LLE peripheral neuropathy and RLE peripheral neuropathy are not adequately contemplated by the schedular rating criteria. Therefore, discussion of whether an extraschedular rating must be considered is not necessary. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

In reaching these conclusions, the Board has also considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims for an effective date prior to June 21, 2012, and an initial rating in excess of 20 percent for LLE peripheral neuropathy and RLE peripheral neuropathy, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an effective date prior to May 9, 2012, for the grant of SMC for loss of use of a creative organ is denied.

Entitlement to an effective date of October 16, 2007, for establishing service connection for IHD is granted.

Entitlement to an initial rating for IHD in excess of 30 percent is denied.

Entitlement to an effective date prior to June 21, 2012, for establishing service connection for LLE peripheral neuropathy is denied.

Entitlement to an effective date prior to June 21, 2012, for establishing service connection for RLE peripheral neuropathy is denied.

Entitlement to an initial rating for LLE peripheral neuropathy in excess of 20 percent is denied.

Entitlement to an initial rating for RLE peripheral neuropathy in excess of 20 percent is denied.  

REMAND

Unfortunately, another remand is required for the issues of entitlement to service connection for a skin condition, to include rashes, lipomas, edema, and statis dermatitis, including as due to in-service herbicide exposure; and prostatic hypertrophy, to include as due to renal cell carcinoma and in-service herbicide exposure. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.

Skin Condition

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).	

The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.

The Veteran contends that he developed a skin rash and lipomas after returning from his service in Vietnam. Specifically, the Veteran contends that the skin rash and lipomas are related to his presumed herbicide exposure and service-connected renal cell carcinoma.

A February 2008 medical opinion from the Veteran's private physician diagnosed his skin rash as lymph edema and statis contact dermatitis. See February 2008 letter from Dr. S.Q. In addition, the physician determined that the condition developed as a result of exposure to Agent Orange (AO).

In May 2008, the Veteran underwent a VA skin examination. See May 2008 Compensation and Pension Examination, Skin Disease. The examiner noted 3 fatty tumors, one on each forearm and one on the back. He determined that the Veteran's skin rash is not caused by or a result of exposure to AO in Vietnam. In his report, the examiner reasoned that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic disorder, including Chloracne, which is the only skin disorder currently presumed to be associated with AO exposure.

As discussed above, a medical examination of the Veteran's peripheral neuropathy took place in June 2012. See June 15, 2012, Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire. The examiner reported edema present in the Veteran's legs and noted that it is attributable to diabetic peripheral neuropathy.
The Board finds that the record includes sufficient indication of a link between the Veteran's claimed skin condition and his active military service, including his presumed herbicide exposure. The February 2008 medical opinion from the Veteran's private physician constitutes competent evidence of a skin condition related to his presumed herbicide exposure. Simultaneously, however, the Board finds that there is insufficient evidence of record to decide on the service connection claim. The February 2008 medical opinion was not based on a well-detailed rationale and lacks the probative weight to sustain the Veteran's contention. Moreover, it is not clear whether all of the Veteran's reported symptoms are related to his claimed skin condition. While the Veteran was diagnosed with lymph edema, the June 2012 VA examination attributed the Veteran's edema to his diabetic peripheral neuropathy. Accordingly, a remand is necessary to obtain a VA examination to determine the etiology of the Veteran's claimed skin condition, to include rashes, lipomas, edema, and statis dermatitis, including as due to herbicide exposure. See McLendon, 20 Vet. App. at 83.

In rendering the opinion, the examiner must clarify which of the Veteran's symptoms, including his documented lipomas and edema, are attributed to the claimed skin condition. If any of the symptoms are attributable to a separate condition that is not currently service-connected, the examiner must determine whether the non-service connected condition is related to the Veteran's active service, including herbicide exposure. The examiner is also reminded that the fact that a diagnosis is not legally presumed to be etiologically related to herbicide exposure does not necessarily preclude service connection on the basis of herbicide exposure. The examiner is reminded while the February 2008 medical opinion noted an etiology related to AO exposure, AO is but one example of an herbicide agent; the examiner must determine whether the claimed condition is related to exposure to any herbicide agent as defined by VA. See 38 C.F.R. § 3.307(a)(6). 

Prostatic Hypertrophy

The Veteran also contends that his diagnosed prostatic hypertrophy is related to his active service, including his service-connected renal cell carcinoma and presumed herbicide exposure. 
A VA examination regarding the Veteran's prostatic hypertrophy took place in July 2017. See July 2017 Kidney Conditions Disability Benefits Questionnaire; July 2017 Compensation and Pension Examination. In her report, the examiner noted that the Veteran had urinary incontinence and frequency issues and that his urinary symptoms were due to benign prostatic hypertrophy and overactive bladder. The examiner stated that the urinary symptoms are not from the service-connected renal cell carcinoma or its surgery. In addition, the examiner determined that it is less likely as not that his benign prostatic hypertrophy is secondary to his service-connected history of renal cell carcinoma. She reasoned that renal cell carcinoma itself is not a cause of benign prostatic hypertrophy.

The Board finds that the July 2017 VA examination is inadequate. The examining physician did not address whether the Veteran's service-connected renal cell carcinoma or its residuals aggravated, rather than caused, his prostatic hypertrophy. Further, the examiner did not separately address whether the prostatic hypertrophy is otherwise related to or caused by the Veteran's presumed herbicide exposure. Once VA undertakes an examination, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, a remand is necessary to obtain an addendum opinion determining whether the Veteran's prostatic hypertrophy, including his related urinary symptoms, is aggravated by his service-connected renal cell carcinoma and whether it is otherwise caused or aggravated by herbicide exposure.

The Veteran is hereby notified that it is his responsibility to report for a VA examination and to cooperate in the development of this appeal, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2017).

Accordingly, the case is REMANDED for the following action:

1. With any required assistance of the Veteran, obtain any outstanding VA and pertinent private medical records.

2. Then, afford the Veteran a VA examination with an appropriate health professional to determine the nature and etiology of the Veteran's claimed skin condition, to include rashes, lipomas, edema, and statis dermatitis, including as due to in-service herbicide exposure. The claims folder should be made available to the examiner for review in connection with the examination, and the examiner should acknowledge such review in the examination report.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that claimed skin condition, to include rashes, lipomas, edema, and statis dermatitis, is related to or caused by the Veteran's active service, including in-service herbicide exposure. 

In rendering this opinion, the examiner must clarify which of the Veteran's symptoms, including his documented lipomas and edema, are attributed to the claimed skin condition. If any of the symptoms are attributable to a separate condition that is not currently service-connected, the examiner must determine whether the non-service connected condition is related to the Veteran's active service, including herbicide exposure.

Further, the examiner must address the positive etiological opinion and diagnoses reported in the February 2008 private medical opinion.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

The examiner is reminded that the fact that a diagnosis is not legally presumed to be etiologically related to herbicide exposure does not necessarily preclude service connection on the basis of herbicide exposure.

Also, the examiner is reminded that he or she must determine whether the claimed condition is related to exposure to any herbicide agent as defined by VA, not solely Agent Orange. See 38 C.F.R. § 3.307(a)(6).

3. Additionally, contact the examiner who performed the July 2017 VA examination if available, or other appropriate medical professional if necessary. If the examiner determines that an in-person examination is necessary in order to provide an opinion, then such an examination must be performed. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. The examiner must answer the following:

a. Whether the Veteran's diagnosed prostatic hypertrophy, including his related urinary symptoms, is aggravated by his service-connected renal cell carcinoma.

b. Whether the Veteran's diagnosed prostatic hypertrophy is otherwise related to, or caused by, in-service herbicides exposure.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

The examiner must provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

4. Finally, readjudicate the issues remaining on appeal- entitlement to service connection for a skin condition, to include rashes, lipomas, edema, and statis dermatitis, including as due to herbicide exposure; and prostatic hypertrophy, to include as due to service-connected renal cell carcinoma and in-service herbicide exposure. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration.

No action is required of the Veteran until he is notified by VA. However, he is again advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood, 1 Vet. App. at 190. His failure to help procure treatment records, for example, may impact the determination made. His failure to report for a VA medical examination may have the same impact. 38 C.F.R. § 3.655 (2016). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his attorney, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court are to be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). 




______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs