Citation Nr: 1801743 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-42 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for a prostate condition. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 4. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left upper extremity. 5. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right upper extremity. 6. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 7. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 8. Entitlement to an initial compensable rating for erectile dysfunction. 9. Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to service-connected diabetes mellitus or service-connected peripheral neuropathy of the bilateral upper and lower extremities. 10. Entitlement to special monthly compensation (SMC) at a level higher than that payable under 38 U.S.C. § 1114 (k) for the loss of use of a creative organ. REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney ATTORNEY FOR THE BOARD D. Smart, Associate Counsel INTRODUCTION The Veteran had active service from July 1961 to July 1965 and October 1964 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that in a June 2017 decision, the RO denied entitlement to service connection for TDIU due to all of the Veteran's service-connected disabilities. The Veteran filed a notice of disagreement in June 2017 which was acknowledged by the RO in August 2017. Therefore, the Board will refrain from remanding this issue at this time. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). Nonetheless, the issue of a TDIU due solely to the Veteran's service-connected diabetes mellitus and service-connected peripheral neuropathy of the bilateral upper and lower extremities has been raised by the record and the issues have been recharacterized as seen on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that after the August 2016 statement of the case, VA treatment dated to March 2017 and April 2017 VA examinations were associated with the claims file. As these records are duplicative or irrelevant to the Veteran's claims for service connection and SMC at a higher level, a remand for the issuance of a supplemental statement of the case (SSOC) for these issues is not necessary. See 38 C.F.R. § 19.31 (b)(1). This appeal was processed using the Veterans Benefits Management System (VMBS). A review of the Veterans Legacy Content Manager Documents reveals VA treatment records dated February 2005 to April 2005, June 2007 to July 2009 and February 2012 to August 2016. 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 issues entitlement to increased ratings for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a rating decision issued in November 2007, the RO denied entitlement to service connection for hypertension; this decision was not appealed and became final. 2. Evidence submitted since the November 2007 rating decision is duplicative, cumulative, and redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. 3. The Veteran's prostate condition cannot be presumed to be due to exposure to herbicides in service and did not manifest during, or as a result of, active military service or service-connected diabetes mellitus. 4. SMC for loss of use of a creative organ has been in effect at the rate specified at 38 U.S.C.A. 1114 (k) since service connection was established for erectile dysfunction on September 11, 2009. CONCLUSIONS OF LAW 1. The November 2007 rating decision is final. 38 U.S.C. §§ 5103, 5103A, 7105(c) (2012); 38 C.F.R. §§ 3.104 (a), 20.302(a), 20.1103 (2017). 2. New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156 (a) (2017). 3. The criteria for service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. There is no legal basis for award of an increased amount of special monthly compensation for the loss of use of a creative organ. 38 U.S.C. § 1114 (k) (2012); 38 C.F.R. § 3.350 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Here, neither the Veteran nor his representative has raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Under 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156 (a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Historically, the Veteran filed a claim for service connection for hypertension in March 2007. In a November 2007 rating decision, the RO denied entitlement to service connection hypertension. The RO noted that there was no record of treatment or diagnosis of this condition shown in the service medical records or within one year of discharge from service. The RO also noted that there was no medical evidence or opinion to show that the hypertension was caused by diabetes mellitus and that hypertension was diagnosed before diabetes. The Veteran was notified of this decision by way of a December 17, 2007, letter. The Veteran did not appeal this decision and no additional evidence pertinent to the issue was associated with the claims folder within one year of the decision. See 38 C.F.R. § 3.156 (b) (2016); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Board notes that after the November 2007 rating decision, the Veteran's personnel file was added to the claims file. 38 C.F.R. § 3.156 (c). However, the Veteran's personnel records are not relevant to the claim to reopen. Thus, the November 2007 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The relevant evidence of record at the time of the November 2007 rating decision included the Veteran's service treatment records, private treatment records dated July 1994 to July 2004 and VA treatment records dated April 2005 to March 2007. The Veteran filed a claim to reopen in September 2009. The relevant evidence associated with the claims file since the November 2007 rating decision includes VA treatment records dated July 2005 to March 2017 and a July 2016 VA hypertension examination in which the examiner explained that it is not possible that the Veteran's hypertension is due to the Veteran's diabetes type II as private treatment records show that the Veteran was diagnosed with hypertension in December 1994 and diabetes in December 2002. The examiner also explained that there was no evidence that the Veteran's hypertension was aggravated beyond its natural progression due to the Veterans diabetes as the Veteran's hypertension was under good control on current regimen. The Board notes that some of the evidence of record is new, but does not raise a reasonable possibility of substantiating the claim. The additional treatment records continue to show that the Veteran has a diagnosis of hypertension which is cumulative of the evidence of record at the time of the November 2007 rating decision. Additionally, the July 2016 nexus opinion is a negative opinion, which cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). As the additional evidence is not new and material, the claim is not reopened. Service Connection The Veteran contends that he has a prostate condition that is due herbicide exposure. See September 2009 claim. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemia's; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e) (2017). Turning to the evidence of record, the Veteran was afforded a VA prostate examination in April 2013. The examiner concluded that the Veteran was not now or ever diagnosed with prostate cancer. The examiner noted that the Veteran reported that he has not been diagnosed with prostate cancer. The examiner noted that the Veteran had BPH (benign prostatic hyperplasia) and prostatitis. The examiner noted that the medical records also confirm that he has not been diagnosed with prostate cancer. Additionally, the Veteran's personnel records reveal that he served in the Republic of Vietnam. Therefore, exposure to herbicides is conceded. See VA's Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). However, none of the Veteran's diagnosed conditions are listed as disabilities subject to presumptive service connection under 38 C.F.R. § 3.309 (e). Thus, presumptive service connection is not warranted on the basis of herbicide exposure. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regards, the Veteran's service treatment records are absent of any complaints, treatment or diagnosis of a prostate condition. An October 1994 private treatment record shows that the Veteran was diagnosed with prostatitis. An April 2005 VA treatment record shows that the Veteran was noted as having BPH. An April 2013 VA male reproductive examination noted that that long term drug therapy was used for chronic prostatitis not related to diabetes. A July 2016 VA male reproductive examination noted that the Veteran was treated for BPH/prostatitis/orchitis/urinary retention in 2009 and was admitted to temple VAMC. The examiner noted that this was not related to diabetes. Based on the above, the Board finds that service connection for a prostate condition is not warranted. The Board acknowledges that the April 2013 prostate conditions examination did not provide an opinion regarding the nature and etiology of the Veteran's condition. The Board also acknowledges that the April 2013 and July 2016 male reproductive VA examination reports stated that the Veteran's prostatitis was unrelated to his diabetes mellitus but did not specifically address secondary service connection. However, the Board finds that such an opinion is not necessary. First, the Veteran does not contend and the evidence does not otherwise suggest that the Veteran's prostate cancer is secondary to the Veteran's diabetes mellitus. See 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Furthermore, the only evidence of record relating the Veteran's prostate condition in any way to his military service is the Veteran's own lay statements. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of a prostate condition, falls outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, while Veteran can competently report the onset of symptoms, any opinion regarding the nature and etiology of his condition requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board cannot assign any probative weight to the Veteran's assertions that his prostate condition is in any way related to his military service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Finally, the evidence does not reflect, and the Veteran has not asserted, that he has suffered from symptoms since service. Furthermore, the Veteran's prostate condition is not an enumerated condition under 38 C.F.R. § 3.309 (a). Therefore, such consideration based on presumptive service connection or continuity of symptomatology is not warranted. Therefore, the Board finds that the weight of the evidence is against a finding of service connection for a prostate condition. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102 (2017), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). SMC The Veteran contends that an increased amount of special monthly compensation is warranted. The Veteran has been in receipt of SMC based on loss of use of a creative organ under 38 U.S.C. § 1114 (k) since service connection was established for erectile dysfunction on September 11, 2009. The amount of SMC for loss of use of a creative organ is a non-variable amount and is set by statute. 38 U.S.C. § 1114 (k). As the rate for SMC for loss of use of a creative organ is set by statute and is not variable, the facts and circumstances relating to the Veteran's loss of use of a creative organ are not determinative to the amount of SMC compensation for loss of use of a creative organ. Accordingly, the Veteran's claim seeking a higher level of special monthly compensation for loss of use of a creative organ must be denied as a matter of law, and the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As new and material evidence has not been received, the previously denied claim of service connection for hypertension is not reopened; the appeal is denied. Entitlement to service connection for a prostate condition is denied. Entitlement to an increase in SMC for loss of use of a creative organ is denied. REMAND In April 2017 the Veteran was afforded new VA examinations addressing the severity of his diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities and erectile dysfunction. However, the Veteran has not been furnished a supplemental statement of the case (SSOC) that addresses the reports of VA examination. See 38 C.F.R. §§ 19.37 (a), 19.31(b) (2017) (discussing when an agency of original jurisdiction will furnish the appellant and his or her representative a supplemental statement of the case)). While 38 U.S.C.A. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, VA does not currently interpret section 7105(e) as extending to evidence that was not submitted by the Veteran, such as VA-generated evidence including VA treatment records and examination reports. 38 U.S.C. § 7105 (e) (2012). As the April 2017 VA examination reports are highly relevant to the claims on appeal, the case must be remanded back to the AOJ for review and issuance of a SSOC. Finally, the Board finds that the claim for TDIU due solely to his service connected diabetes mellitus and peripheral neuropathy is inextricably intertwined with the issues being remanded and the disposition of the TDIU claim must be deferred pending resolving this preliminary matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 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.) The Veteran's claims should be re-adjudicated based on the entirety of the evidence, including evidence submitted since the issuance of the August 2016 statement of the case, to include the April 2017 VA examination reports. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs