Citation Nr: 1801096 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-29 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for erectile dysfunction. 2. From November 9, 2010, to November 2, 2011, entitlement to a rating in excess of 20 percent for prostate cancer, status post seed implant and radiation. 3. From November 3, 2011, to March 13, 2014, entitlement to a rating in excess of 20 percent for prostate cancer, status post seed implant and radiation. 4. From March 14, 2014, entitlement to a rating in excess of 40 percent for prostate cancer, status post seed implant and radiation. 5. Entitlement to an initial rating in excess of 30 percent for coronary artery disease. 6. Entitlement to service connection for bilateral foot disorder (also claimed as arthritis of the feet). 7. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty in the United States Air Force from June 1960 to July 1982. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. By correspondence received June 2016, the Veteran withdrew his request for a hearing. The issue of entitlement to service connection for a bilateral foot disorder and entitlement to total disability rating due to individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran's erectile dysfunction is not characterized by deformity of the penis with loss of erectile power. 2. From November 9, 2010, to November 2, 2011, the Veteran's status post seed implant and radiation is characterized by awakening 3 to 4 times at night to void, but not by waking 5 or more times at night to void. 3. From November 3, 2011, to March 13, 2014, the Veteran's status post seed implant and radiation is characterized by waking 5 or more times at night to void. 4. From March 14, 2014, the Veteran's status post seed implant and radiation is characterized waking 5 or more times at night to void. 5. The Veteran's coronary artery disease is characterized by a workload of greater than 5 METs but not greater than 7 METs that results in fatigue, but is not characterized by acute congestive heart failure, chronic congestive heart failure, a workload of 5 METs or less, or a left ventricular ejection fraction of 50 percent or less. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115b, Diagnostic Code 7522 (2017). 2. From November 9, 2010, to November 2, 2011, the criteria for a disability rating in excess of 20 percent for prostate cancer, status post seed implant and radiation, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115a (2017). 3. From November 3, 2011, to March 13, 2014, the criteria for a disability rating of 40 percent, but no greater, for prostate cancer, status post seed implant and radiation, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115a (2017). 4. From March 14, 2014, the criteria for a disability rating in excess of 40 percent for prostate cancer, status post seed implant and radiation, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.115a (2017). 5. The criteria for an initial disability rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Erectile dysfunction From November 9, 2010, the Veteran is receiving compensation for loss of use of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a). In January 2012, the RO granted service connection for erectile dysfunction associated with prostate cancer, status post seed implant and radiation therapy, at a noncompensable rating under Diagnostic Code 7522 from November 9, 2010. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from November 9, 2010, the date that the claim was filed. 38 C.F.R. § 3.400(o). Under Diagnostic Code 7522, a 20 percent rating is appropriate for a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The evidence does not support a compensable rating under Diagnostic Code 7522. None of the examinations, medical records, or lay statements indicates a deformity of the Veteran's penis. While the March 2014 and September 2011 VA prostate examinations indicate loss of erectile power, this by itself is insufficient to support a compensable rating under the mechanical application of Diagnostic Code 7522. Entitlement to an initial rating of 20 percent must be denied. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. B. Prostate cancer The Veteran is service-connected for prostate cancer, status post seed implant and radiation, at 0 percent under Diagnostic Code 7528 from August 1, 1982. In a July 2011 rating decision, the RO continued the Veteran's non-compensable rating. The Veteran is appealing that decision. His rating has since been increased to 20 percent from November 9, 2010, and 40 percent from March 14, 2014. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to November 9, 2010, the date when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Diagnostic Code 7528 provides compensation for malignant neoplasms of the genitourinary system. 38 C.F.R. § 4.115b. Following the cessation of surgery, chemotherapy, or other therapeutic procedure, a rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months and any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). The rating criteria also provide that if there has been no local reoccurrence or metastasis, then the cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. For voiding dysfunction, a 20 percent rating is appropriate for requiring the wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a. A 40 percent rating is appropriate for requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. Id. A 60 percent rating is appropriate for requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. For renal dysfunction, a 0 percent rating is appropriate for renal dysfunction with albumin and casts with history of acute nephritis or hypertension. 38 C.F.R. § 4.115a. A 30 percent rating is appropriate for constant albumin or recurring with hyaline and granular casts or red blood cells or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. Id. A 60 percent rating is appropriate for constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. Id. An 80 percent rating is appropriate for persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. A 100 percent rating is assigned for regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, or markedly decease function of kidney or other organ systems, especially cardiovascular. Id. For urinary frequency, a 10 percent rating is appropriate for daytime voiding interval between two and three hours or awakening to void two times per night. 38 C.F.R. § 4.115a. A 20 percent rating is appropriate for daytime voiding interval between one and two hours or awakening to void three to four times per night. Id. A 40 percent rating is appropriate for daytime voiding interval less than one hour or awakening to void five or more times per night. Id. Prior to November 3, 2011, the evidence is consistent with a rating of 20 percent based on the Veteran's urinary frequency. A September 2011 VA prostate examination indicates that the Veteran experiences voiding dysfunction not requiring absorbent materials and awakening 3 to 4 times at night to void. Consistent with this, an October 2011 private medical record reveals that the Veteran voids 4 times per night. There is no indication of obstructed voiding or urinary tract infections. The consistent reports of awakening 4 times a night to void is consistent with a 20 percent rating based on urinary frequency. From November 3, 2011, the evidence is consistent with a 40 percent rating. In a lay statement of that date, the Veteran first reports going to the bathroom 4 to 5 times a night. The Veteran is competent to report these symptoms because they are within the knowledge and personal observations of lay witnesses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Consistent with this, a March 2014 VA prostate examination notes nighttime awakening to void 5 or more times. Resolving the benefit of the doubt in the Veteran's favor, these symptoms are consistent with a 40 percent rating based on nighttime urinary frequency of 5 times or more. A higher rating is not supported because the March 2014 VA prostate examination indicates that voiding dysfunction requires absorbent material to be changed less than 2 times a day, not more than 4 times per day. The evidence does not support additional staged ratings for any time period on appeal. The evidence does not contain evidence of edema, albuminuria, or any other symptomatology supporting a compensable rating based on renal failure. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. C. Coronary artery disease In August 2011, the RO granted service connection for coronary artery disease at an initial rating of 30 percent under Diagnostic Code 7005 from August 31, 2010, the date that the claim was filed. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Under Diagnostic Code 7005, a 10 percent disability rating is appropriate where there is a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or if continuous medication is required. 38 C.F.R. § 4.104. A 30 percent disability rating is appropriate where there is a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or if there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is appropriate where there is more than one episode of acute congestive heart failure in the past year, workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is appropriate where there is chronic congestive heart failure, a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The evidence is consistent with the 30 percent rating that the Veteran is currently assigned. A September 2011 VA heart examination indicates no history of heart failure or myocardial infarction, a METs level of greater than 5 but not greater than 7, and a left ventricular ejection fraction (LVEF) of 53 percent, that percentage based on a September 2009 test. Consistent with this, a March 2014 VA heart examination reveals no history of heart failure or myocardial infarction, a METs level of greater than 5 but not greater than 7, and an LVEF of 55 percent, that percentage based on a May 2012 test. A July 2015 private medical record reports an LVEF of 80 percent. This evidence supports a 30 percent rating only. At no point does the evidence indicate acute or chronic congestive heart failure, a workload of 5 METs or less, or an LVEF of 50 percent or less, so as to support a rating of 60 percent or greater. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. ORDER Entitlement to an initial compensable rating for erectile dysfunction is denied. From November 9, 2010, to November 2, 2011, entitlement to a rating in excess of 20 percent for prostate cancer, status post seed implant and radiation, is denied. From November 3, 2011, to March 13, 2014, entitlement to a rating of 40 percent, but no greater, for prostate cancer, status post seed implant and radiation is granted, subject to the laws and regulations governing the payment of monetary benefits. From March 14, 2014, entitlement to a rating in excess of 40 percent for prostate cancer, status post seed implant and radiation, is denied. Entitlement to an initial rating in excess of 30 percent for coronary artery disease is denied. REMAND A remand is required to obtain a new VA examination and medical opinion regarding the Veteran's bilateral foot disorder, including but not limited to pes planus. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). A. Pes planus The four McLendon elements are satisfied with regard to the Veteran's bilateral pes planus. Regarding the first element, the Veteran's June 1960 entrance examination specifically states: "Pes planus 2nd degree." Consistent with this, a December 1962 examination states: "Pes planus, 2?, generally asymptomatic." This constitutes competent evidence of recurring symptoms of a disability. The second element is also satisfied. As already noted, the December 1962 examination states that the Veteran's pes planus is "generally asymptomatic," which implies that his condition is sometimes symptomatic. This constitutes evidence that some in-service event occurred in service causing some symptom of pes planus to manifest itself. Regarding the third and four elements, there is an indication that the Veteran's pes planus was aggravated in service, but a medical opinion is required to assess whether it is at least as likely as not that pes planus worsened in severity beyond its natural progression during service, i.e., was aggravated by service. A Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 38 U.S.C. §§ 1111, 1132. Since the June 1960 record establishes that pes planus was noted at entry, the presumption of soundness is not applicable. See 38 U.S.C. § 1111. Because of this, service connection for bilateral pes planus may be granted only if it is shown that it is at least as likely as not that the bilateral pes planus worsened in severity beyond its natural progression during service, i.e., was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran indicated no foot disorders during his March 1982 exit examination. Nevertheless, the "generally asymptomatic" notation in the December 1962 examination suggests that the Veteran's pes planus could have been aggravated by service, thus satisfying the third McLendon element. But there is no medical evidence of record by which the Board can make this determination, thus satisfying the fourth element. As all four McLendon elements have been satisfied, a VA examination and medical opinion are required regarding the Veteran's pes planus. B. Bilateral foot disorder other than pes planus The four McLendon elements are also satisfied with regard to a bilateral foot disorder other than pes planus. For the first element, an October 2011 private medical record contains a diagnosis of a right foot stress fracture. A January 2016 VA medical record indicates arthritis of the feet. This constitutes competent evidence of a current disability, satisfying the first element. Regarding the second element, several service treatment records (STRs) provide evidence of in-service injuries. A December 1962 examination notes "[p]lantar callus over heads of 3d and 4th metatarsals, left foot." A November 1969 record describes "marked cracking . . . between 4th and 5th toes bilat[erally]." Several records from November 1974 describe a basketball-related, twisted right ankle, which is described as a "soft tissue injury" with "no soft tissue swelling" but "in a ligament and does not represent a fracture." The Veteran was put on crutches after this incident. There are also reports of rashes and lesions on the Veteran's feet. See November 1975 STR; January 1974 STR; September 1969 STR; July 1969 STR. In his March 1982 exit examination, the Veteran checked "NO" next to a box indicating "[f]oot trouble," but did check boxes indicating a number of other disorders. Nevertheless, the evidence as a whole provides ample evidence of in-service incidence so as to satisfy the second McLendon element. Regarding the third and fourth McLendon elements, there is an indication that the Veteran's current foot disorders could be the result of these in-service incidents, but there is insufficient evidence of record by which the Board could make a decision. A VA examination and medical opinions are required regarding foot disorders other than pes planus. The Veteran's claim of entitlement to total disability rating due to individual unemployability (TDIU) is inextricably intertwined with the bilateral foot claim remanded for further development. Accordingly, the remaining claims must be considered together, and thus a decision by the Board on the Veteran's claim of entitlement to TDIU would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). VA treatment records to February 4, 2016, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from February 5, 2016, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims folder all records of the Veteran's VA treatment from February 5, 2016, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain medical opinions regarding the nature and etiology of any current or previously-diagnosed bilateral foot disorder, including but not limited to pes planus, plantar callus, arthritis, and a foot rash. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: a. Whether it is at least as likely as not that the Veteran's bilateral pes planus worsened in severity beyond its natural progression during service, i.e., was aggravated by service; b. Whether the Veteran has any current or previously-diagnosed foot disorder other than pes planus, including but not limited to plantar callus, arthritis, and a foot rash; c. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed foot disorder other than pes planus was incurred during the Veteran's service, including but not limited to the November 1974 basketball injury; and d. Whether it is at least as likely as not that any current or previously-diagnosed foot disorder other than pes planus was caused or aggravated by pes planus. In reaching these opinions, the examiner should consider the medical evidence discussed in the remand section of this opinion. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs