Citation Nr: 18140752 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-08 928 DATE: October 5, 2018 ORDER New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a left knee disorder, to this extent only, the claim is granted. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a right knee disorder, to this extent only, the claim is granted. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a back disorder is denied. Entitlement to service connection for a lung disorder, to include as due to asbestos exposure, is denied. Entitlement to a compensable rating for residuals of prostate cancer, to include associated erectile dysfunction, is denied. REMANDED Service connection for a left knee disorder is remanded. Service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. In a July 2013 rating decision, the RO denied the Veteran’s claim for service connection for a left knee disorder, right knee disorder, and back disorder; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final July 2013 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left knee disorder. 3. The evidence received since the final July 2013 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee disorder. 4. The evidence received since the final July 2013 rating decision, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a back disorder. 5. The Veteran has not had a lung disability at any time relevant to the appeal period. 6. The preponderance of the evidence is against finding that the Veteran has any residuals of prostate cancer beyond his erectile dysfunction, which is not manifested by a penile deformity. CONCLUSIONS OF LAW 1. The July 2013 rating decision denying the Veteran’s claim for service connection for a left knee disorder, right knee disorder, and back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the service connection claim for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the service connection claim for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Evidence received since the July 2013 denial is not new and material; hence, the criteria for reopening the service connection claim for a back disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. Entitlement to service connection for a lung disability is denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 6. The criteria for a compensable rating for residuals of prostate cancer, to include associated erectile dysfunction, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.31, 4.115b, Diagnostic Codes 7528 and 7599-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to July 1973. In June 2018, the Veteran and his spouse testified during a Board video conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. New and Material Evidence A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Thus, the Board’s task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran’s claim. A July 2013 rating decision denied the Veteran’s claims for service connection for a left knee, right knee, and back disorders due to no current diagnosis. The Veteran was informed of the decision in writing and did not appeal the decision or submit pertinent evidence during the appeal period. Therefore, this rating decision is final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 1. Left knee disorder 2. Right knee disorder Since, the July 2013 final rating decision, private medical evidence associated with the claims file indicated that the Veteran has been diagnosed with ostearthritis of the right knee, and degenerative joint disease of the right and left knee. Consequently, new evidence associated with the claims file shows various diagnosed knee disorders and raises a reasonable possibility of substantiating the Veteran’s prior claims. Accordingly, this evidence is also material. As new and material evidence has been received, the claims for service connection for the left and right knee are reopened. Although the private medical evidence is adequate for the limited purpose of reopening these claims, it is not sufficient to allow the grant of the benefits sought. The Board finds that additional evidentiary development is required, as discussed in the remand below. 3. Back disorder Since, the July 2013 final rating decision, new evidence associated with the claims file included VA and private treatment records, and the Veteran’s lay statements. Despite the evidence added to the claims file, nothing suggests a diagnosed back disorder. The Board acknowledges that during the June 2018 hearing, the Veteran testified that he injured his back when lifting sand-filled ammo boxes. However, the Board finds that making a medical diagnosis of a spinal condition is an inherently complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Accordingly, the Veteran’s lay statements in this regard are not competent or probative evidence of a diagnosed back disorder. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the new evidence does not raise a reasonable possibility of substantiating the claim of service connection and does not relate to an unestablished fact necessary to substantiate the claim. In consideration of the foregoing, the Board finds that the critical defect existing at the time of the previous rating decision has not been addressed by new evidence, much less cured, and thus the claim of entitlement to service connection for a back disorder may not be reopened. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for a back disorder is not reopened. de v. Shinseki, 24 Vet. App. 110 (2010). Service Connection The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 4. Lung disorder The Veteran stated in his original claim that he had a lung disorder due to exposure to asbestos in Germany. Later, the Veteran’s representative claimed that the Veteran had a lung disorder due to bronchitis in service; cracked ribs in service; asbestos exposure in Germany; herbicide, chemical and pesticide exposure in Vietnam; hypertension; and secondhand smoke. The Board concludes that the Veteran does not have a current diagnosis of a lung disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). June 2015 private treatment records, from Dr. CH, reported that the Veteran had chronic shortness of breath with normal pulmonary function tests. Dr. CH doubted any asbestos toxicity due to interviewing the Veteran regarding potential sources of exposure. VA treatment records associated with the claims file were negative for shortness of breath, coughing or wheezing, and the Veteran denied a history of asthma. Shortness of breath is not a disability for purposes of VA disability compensation. Rather, the applicable VA regulations use the term “disability” to refer to the average impairment in earning capacity resulting from diseases or injuries encountered as a result of or incident to military service. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 4.1. Accordingly, the Board finds that the Veteran does not have a current diagnosed disability. While the Veteran and his representative believe that the Veteran has a current lung disorder, they are not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of organ systems in the body, and the ability to interpret diagnostic medical testing. Neither have been shown to possess the requisite training or credentials needed to render a competent medical diagnosis. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, their lay opinions and contentions do not constitute competent medical evidence and lack probative value as to the requirement that there must be a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board is aware that the Veteran submitted a March 2018 private DBQ regarding a diagnosis of obstructive sleep apnea, and has made subsequent arguments that his sleep apnea is related to his originally claimed lung disorder. The Board disagrees. Clemons does not warrant a broadening of the Veteran’s claim for service connection for a lung disorder to include sleep apnea. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court has held that the scope of a disability claim can include any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Id. Here, the RO adjudicated the issue of entitlement to service connection for a “lung disorder,” in an August 2015 rating decision, with explicit consideration of a disability related to asbestos exposure during military service based on the contents of the Veteran’s original claim. Thereafter, in an October 2015 notice of disagreement, the Veteran contested “lung disorder” with no other specific contentions, and by a February 2016 statement of the case the RO again adjudicated a lung disorder, to include asbestos related lung conditions. Consequently, the RO had appropriately expanded the scope of the inquiry to consider disorders specific to the lungs. A sleep disorder is too far outside the realm of what could reasonably be encompassed by the Veteran’s original claim and the June 2015 private treatment records from Dr. CH, that he submitted as part of his claim, which documented a complaint of shortness of breath and concern of asbestos toxicity. Thus, a claim for service connection for sleep apnea is not before the Board. In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increase Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 5. Residuals of prostate cancer, to include erectile dysfunction The Veteran contends that his prostate cancer residuals warrant a compensable rating. The Veteran has a noncompensable rating for residuals of prostate cancer under Diagnostic Code 7528 (malignant neoplasms of the genitourinary system). Diagnostic Code 7528 provides, in pertinent part, that if there has been no local reoccurrence or metastasis, then the disability will be rated on residuals of voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. VA regulations provide that voiding dysfunction be rated as urine leakage, frequency, or obstructed voiding as further set forth in 38 C.F.R. § 4.115a. Renal dysfunction, on the other hand, involves manifestations of symptoms such as albuminuria and definite decrease in kidney function as further set forth in 38 C.F.R. § 4.115a. Review of the record indicates that the Veteran’s prostate cancer is in remission. He experiences no voiding dysfunction nor urinary tract or kidney infections. There is no indication of renal dysfunction. There is no indication that the Veteran has any residuals or complications, separate and apart from his service-connected erectile dysfunction as evidence by his reporting during the August 2015 VA examination. Based on the foregoing, the medical evidence of record does not support a compensable rating for residuals of prostate cancer under Diagnostic Code 7528. The Veteran has a separate noncompensable rating under Diagnostic Code 7599-7522 for erectile dysfunction associated with status post prostate cancer. This condition, as a residual symptom of the Veteran’s service-connected prostate cancer, is within the scope of the instant appeal based on the Veteran’s testimony at the June 2018 Board hearing. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 7599-7522 reflects that there is no diagnostic code specifically applicable to the Veteran’s service-connected erectile dysfunction, and that this disability has been rated by analogy to deformity of the penis with loss of erectile power under Diagnostic Code 7522. See 38 C.F.R. § 4.20 (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under Diagnostic Code 7522, a single 20 percent disability rating is warranted for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, c 7522. Where the criteria for a compensable rating under a diagnostic code are not met and the rating schedule does not provide for a 0 percent rating, a noncompensable (0 percent) rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. Therefore, where both loss of erectile power and deformity are not demonstrated, a 0 percent rating is assigned for erectile dysfunction. Based on review of the record the Board finds that the Veteran’s erectile dysfunction was manifested by an inability to achieve an erection sufficient for penetration and ejaculation (without medication), and retrograde ejaculation. The Veteran reported that he could obtain an erection sufficient for penetration and ejaculation with medication with 60 percent efficacy. While the evidence reflects that the Veteran has been diagnosed with erectile dysfunction due to his prostate cancer, there is no evidence of any penile deformity at any time during the appeal. The Veteran’s penis was not examined at any time, as per his request during the August 2015 VA examination. The VA and private medical treatment records associated with the claims file did not indicate a penile deformity or abnormality. Thus, as no penile deformity has been shown, a compensable rating for erectile dysfunction under Diagnostic Code 7522 is not warranted at any time during the appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.31, 4.115b, Diagnostic Code 7522. In reaching this decision, the Board has considered the Court’s recent decision in Williams v. Wilkie, and finds that it does not apply. See Williams v. Wilkie, No. 16-3252, slip op. (U.S. Vet. App. Aug. 7, 2018) (holding that “deformity” under Diagnostic Code 7522 means an internal or external distortion of the penis). There is no medical evidence indicating a penile deformity, as prostate cancer treatment records document that the Veteran was treated with radiation therapy. Therefore, the facts in this case are different from those in Williams where the issue involved severed nerves from a radical prostatectomy. Additionally, the Board has considered the Veteran’s lay contentions, raised during the June 2018 hearing, such as testosterone injections, erectile medication, and use of a pump. These facts do not constitute a basis for an increased rating under the criteria set forth in Diagnostic Code 7522. The Board notes that the Veteran is in receipt of special monthly compensation (SMC) on account of loss of use of a creative organ, and the award of SMC adequately contemplates his complained loss of reproductive functioning throughout the duration of the appeal. Moreover, 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). Hence, while the Veteran has been in receipt of SMC since July 10, 1973, when service connection was established for tubular atrophy with germinal cell arrest; the facts and circumstances relating to the Veteran’s current complaints of erectile dysfunction are not determinative to the amount of SMC compensation as the rate for SMC for loss of use of a creative organ is set by statute and is not variable. Accordingly, there is no legal basis for the Veteran to obtain increased compensation, to include special monthly compensation.   In sum, the Board finds that the preponderance of the evidence is against the claim, and a compensable rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection 6. Left knee disorder 7. Right knee disorder The evidence of record indicates current diagnoses of osteoarthritis of the right knee and degenerative joint disease of both knees. The Veteran contends that his knee disorders are from his MOS and performing such tasks as carrying a 66 pound pack and building a bunker. Therefore, he must be given a VA examination for an opinion on whether his current knee diagnoses are related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner should specifically address the Veteran’s lay contention that his knee disorders are the result of his MOS and physical tasks in service. As the record indicates, that the Veteran is in receipt of private orthopedic treatment, he should be afforded an opportunity to submit updated treatment records regarding his knees. The matter is REMANDED for the following action: 1. Ask the Veteran to identify any private medical care providers who treated him for a knee disorder, and make reasonable efforts to secure the necessary releases and to associate any such identified records with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee disorder, bilaterally. The examiner must opine whether it is at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must also opine whether it is at least as likely as not related to an in-service injury, event, or disease, including addressing the Veteran’s lay contentions that his knee disorders are due to his MOS and due to physical tasks in service, such as carrying a heavy pack and building a bunker. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel