Citation Nr: 18144269 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-26 141 DATE: October 24, 2018 ORDER Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. Service connection for right lower extremity peripheral neuropathy is denied. Service connection for left lower extremity peripheral neuropathy is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. An initial compensable rating for erectile dysfunction (ED) is denied. A separate evaluation for residuals of prostate cancer, other than ED and loss of use, is denied. A temporary total 100 percent rating (TTR) for residuals of prostate cancer is denied. FINDINGS OF FACT 1. The Veteran had active service from January 1968 to August 1969, to include service in the Republic of Vietnam (RVN). 2. Bilateral upper extremity peripheral neuropathy has not been shown. 3. Bilateral lower extremity peripheral neuropathy has not been shown. 4. A psychiatric disorder has not been shown. 5. ED results in loss of erectile power but no physical deformity of the internal or external penis. 6. Prostate cancer was removed in August 2009 and there has been no evidence of recurrence since. The claim for service connection was received in August 2014. 7. Throughout the period on appeal, the residuals of prostate cancer have not resulted in residual voiding dysfunction or renal dysfunction. CONCLUSIONS OF LAW 1. Left upper extremity peripheral neuropathy was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2017). 2. Right upper extremity peripheral neuropathy was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2017). 3. Left lower extremity peripheral neuropathy was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2017). 4. Right lower extremity peripheral neuropathy was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2017). 5. An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2017). 6. The criteria for an initial compensable rating for ED have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 4.3, 4.7, 4.14, 4.115(b), Diagnostic Code (DC) 7522 (2017). 7. The criteria for a separate compensable rating for residuals of prostate cancer, other than ED and loss of use, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 4.3, 4.7, 4.14, 4.115(b), DCs 7527, 7528 (2017). 8. The criteria for a TTR for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.115b, DC 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Historically, the Veteran was granted service connection for prostate cancer in January 2015 and a non-compensable rating was assigned effective August 4, 2013, a year prior to the date of receipt of the claim. The RO subsequently denied entitlement to a TTR. In a January 2015 notice of disagreement, he essentially argued that he believed a compensable rating was warranted for his service-connected disability based on residuals of prostate cancer, other than ED. He also disagreed with the denial of the TTR. The Board has recharacterized the claim broadly as a claim for entitlement to a separate compensable rating for prostate cancer residuals, other than ED and loss of use. Entitlement to an earlier effective date will not be addressed, as he specifically noted he was not challenging the effective date assigned. Last, the Board notes that the Veteran’s issue was framed in the statement of the case as a claim for TTR because of treatment for a service-connected disability. The Board will consider whether convalescent pay following his prostate surgery in 2009 is warranted within the context of his increased rating claim. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases which are associated with herbicide exposure include peripheral neuropathy and prostate cancer. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).   Bilateral Upper/Lower Extremity Peripheral Neuropathy and an Acquired Psychiatric Disorder In order to grant service connection, the evidence must first demonstrate the current existence of the claimed disabilities. See Holton, 557 F.3d at 1366; Allen v. Brown, 7 Vet. App. at 439. Here, the record includes evidence of the Veteran’s medical history, to include medical records from VA and private treatment providers detailing the treatment for his prostate cancer treatment and other disorders. The treatment providers have routinely listed his ongoing health concerns; however, no mentions of neuropathy or a psychiatric diagnosis has ever been made. With regard to the Veteran’s claims for bilateral upper and lower extremity peripheral neuropathy, importantly, no disability has been diagnosed with respect to any extremity. He contends that peripheral neuropathy is due to herbicide exposure in active service, but the service treatment records (STRs) fall silent to any complaints for or diagnoses of a neurological disorder or symptoms while in active service. An August 1969 separation chest examination showed that his extremities were normal and that he was without neurological deficits. Further, the provided post-service medical evidence is absent of notations regarding any treatment for or complaints of neurological symptoms of any extremity. Therefore, the medical evidence does not support diagnoses of peripheral neuropathy. Similarly, with regard to his claim for an acquired psychiatric disorder, the evidence falls largely silent to any treatment, and contains no clinical diagnoses. In a November 2014 VA examination, the Veteran denied any history of treatment for a psychiatric disorder, as well as any current treatment. He reported only some feelings of grief and depression when his wife died, which lasted about two years. While some stressors were identified and corroborated, and he received some medication for depression, the examiner found no lasting effects significant to warrant a mental health diagnosis. Therefore, the medical evidence does not support a psychiatric diagnosis related to service. With respect to the service connection claims, the Veteran is competent to report symptoms as they come to him through his senses; however, neuropathy and psychiatric disorders are not the types of disorders that a lay person can provide competent evidence on or answer questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have treated the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. Service connection may not be granted for a diagnosis of a disability by history. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Accordingly, as no current chronic disorders are shown with respect to the bilateral upper or lower extremities, and no psychiatric disorder has been diagnosed, the appeals are denied. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Erectile Dysfunction ED is not specifically listed in the rating schedule but is rated by analogy to DC 7522 for deformity of the penis with loss of erectile power and is rated at 20 percent disabling. In a recent case, the Court held that deformity, as described in that Diagnostic Code, means “a distortion of the penis, either internal or external.” See Williams v. Wilkie, No. 16-3252; 2018 U.S. App. Vet. Claims LEXIS 1037 (August 7, 2018). This code also notes that the adjudicator is to review the claim for entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350, for which he is already in receipt. Therefore, the Board will not consider SMC at this time. Based on the above, resolution of this appeal ultimately turns on whether the Veteran has either internal or external deformity of his penis in addition to the loss of erectile power on account of his ED. Importantly, the Veteran does not assert, and the medical evidence, including VA and private treatment records, does not show that he has deformities of the genitalia resulting from ED, either internally or externally. Specifically, in a November 2014 VA genitourinary examination, he reported experiencing ED but no urinary incontinence or voiding dysfunction as a result of his treatment for prostate cancer. No scarring or other pertinent physical findings, including any internal or external deformities, involving the reproductive organs were noted. As noted, urinary incontinence and voiding dysfunction were not found on VA examination or from review of outpatient VA and private treatment records. As such, evaluation of ED based on voiding dysfunction or urinary incontinence is not warranted. In sum, as the Veteran does not presently have any internal or external deformities of the penis aside from loss of power, the medical evidence does not support an increased rating. Prostate Cancer & Temporary Total Rating Service connection for prostate cancer was granted in January 2015 and rated under DC 7527. The Veteran has asserted that he is entitled to a rating under DC 7528 for malignancy. DC 7528 provides for a 100 percent rating for malignant neoplasms of the genitourinary system. A Note following DC 7528 explains that after cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. This is to allow the Veteran to recover. Simply stated, if there has been no local reoccurrence or metastasis, the disability is to be rated on residuals (if any), such as voiding dysfunction or renal dysfunction, whichever residual is predominant. In considering the claim, the effective date of the grant of service connection for prostate cancer was determined to be August 4, 2013 (a date he has specifically not challenged), a year prior to the receipt of his claim. He underwent surgery in August 2009. He is currently in remission and since the effective date of the grant, the evidence does not reflect an active malignant neoplasm of the genitourinary system. As such the criteria for a TTR for prostate cancer have not been met at any point since he was awarded service-connection for this disability. Moreover, a TTR under 38 C.F.R. § 4.30, for convalescent care following surgery, is not warranted as the Veteran’s prostate cancer surgery was in 2009, almost 5 years before he was granted service connection for prostate cancer. As noted above, a 100 percent rating is provided under DC 7528 for malignant neoplasms of the genitourinary system. Following the cessation of surgery, chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. 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). If there has been no local reoccurrence or metastasis, then a veteran’s cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. To this end, the Veteran has asserted that he is entitled to service connection for further residuals of prostate cancer, including ongoing symptomatology. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating for urine leakage contemplates the wearing of absorbent materials, which must be changed less than 2 times per day. For a rating based on urinary frequency, a 10 percent rating is warranted for a daytime voiding interval between two and three hours, or awakening to void two times per night. For a rating based on obstructed voiding, a 10 percent rating requires marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished flow rate (less than 10 cc/second); (3) recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring period dilation every two to three months. With regard to urinary tract infections, a 10 percent rating is warranted for long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. Initially, the Veteran underwent a VA Agent Orange examination in October 2007, and reported no prostate issues. Later, he was afforded a VA examination for his prostate cancer in November 2014 where he was found to be in remission. Importantly, the examiner found that there was no voiding dysfunction, urinary tract infection, kidney infection, retrograde ejaculation, or any other findings or complications of prostate cancer. Notably, the examiner found that the Veteran had ED as a result of his prostate cancer, for which he has been separately rated. The Board has also reviewed the Veteran’s private and VA treatment records, which show no complaints of or treating for incontinence or a voiding dysfunction. Based on the foregoing, there is no evidence of a current diagnosis or treatment for prostate cancer residuals, or residual renal, incontinence, or voiding dysfunctions. His only permanent residual is ED which he has been service connection as well as SMC. Accordingly, the preponderance of the evidence is against the claim for a compensable rating for prostate cancer and the appeal is denied. With respect to the increased rating claims, the Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s ED and prostate disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel