Citation Nr: 18146534 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 03-19 807 DATE: October 31, 2018 ORDER The claim of entitlement to service connection for a prostate cancer is reopened; to this extent only, the claim is granted. Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for a right knee condition is granted. REMANDED Entitlement to service connection for a prostate condition, to include prostate cancer, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity neuropathy is remanded. Entitlement to a rating in excess of 20 percent prior to September 23, 2011, and in excess of 60 percent thereafter, for diabetes mellitus, type II with erectile dysfunction is remanded. Entitlement to an earlier effective date for the award of service connection for diabetes mellitus type II with erectile dysfunction is remanded. Entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. Evidence received since the unappealed and final July 2010 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for prostate cancer and raises a reasonable possibility of substantiating such claim. 2. The evidence is at least in equipoise as to whether the bilateral knee conditions were aggravated permanently by the service-connected low back disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for prostate cancer may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. The issue of entitlement to service connection for a left knee condition was previously before the United States Court of Appeals for Veterans Claims (Court). In a January 2010 Memorandum Decision, the Court set aside, in part, the Board’s decision that denied the claim of service connection for a left knee disability, and the case was remanded to the Board consistent with the decision. Since the Court’s decision, these issues have been before the Board on numerous occasions. Most recently, the issues of entitlement to service connection for left and right knee conditions was before the Board in March 2017, whereupon both issues were remanded to the RO for further development. After promulgating various statements and supplemental statements of the case, the RO returned all of the above-listed issues to the Board for its adjudication. In light of the facts found, the Veteran’s reopened claim of entitlement to service connection for prostate cancer has been recharacterized broadly as a claim for a prostate condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as the Veteran is in receipt of a TDIU from July 16, 2002 to September 23, 2011, when the combined rating of all of his disabilities reached 100 percent. Entitlement to a separate TDIU rating is also not raised by the record as the Veteran does not have a schedular 100 percent rating for any of his service-connected disabilities. Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran recently perfected an appeal of a special monthly compensation issue addressed in a June 2018 Statement of the Case. This matter has not been certified to the Board to date, however, and is not presently before the Board on appeal. Reopening the claim of service connection for prostate cancer The RO denied the Veteran’s claim of entitlement to service connection for prostate cancer in a July 2010 rating decision on the grounds that the Veteran had never been formally diagnosed with prostate cancer. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the July 2010 rating decision became final by operation of law, except that the claim may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. Since that denial, the Veteran, through his representative, provided additional detailed argument as to this claim in an August 2016 Substantive Appeal. This argument, combined with treatment for a prostate condition shown by the record, meets the low threshold for reopening, as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating such claim. The claim is thus reopened and, in its broader recharacterized form as a claim for a prostate condition, is being REMANDED below. Entitlement to service connection for left and right knee conditions is granted The Veteran contends that he developed bilateral knee conditions either during service or after his discharge due to an injury he sustained in service, and that he continues to experience symptoms of the bilateral knee conditions. In the alternative, he asserts that his diagnosed bilateral knee conditions are proximately attributable and/or were permanently aggravated by his service-connected disabilities. The question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. Alternatively, the question for the Board is whether the Veteran has current disabilities that are proximately attributable to or permanently aggravated by a service-connected disability or combination of service-connected disabilities. The Board concludes that the Veteran is diagnosed with bilateral knee conditions and that the evidence is at least in equipoise as to whether the knee conditions are secondary to a service-connected disability. During the course of this long appeal, the Veteran’s claims file has been evaluated by several different VA examiners for the purpose of eliciting an opinion as to the etiology of the bilateral knee conditions. Not one of those examiners has concluded that the Veteran’s bilateral knee conditions are attributable to service or are secondary to his other various service-connected disabilities. In contrast, the Veteran has submitted an evaluation by a Dr. A.A.. dated in August 2018 in which she found it more likely than not that the bilateral knee conditions were aggravated permanently by the service-connected low back disorder. Where there are conflicting private and VA medical opinions contained in the claims file, as is the case here, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In reviewing the negative etiology opinions of record, the Board is not satisfied that any of the examiners who evaluated the Veteran’s medical history during the pendency of the appeal fully considered the connection between the Veteran’s low back condition and his bilateral knee conditions. VA examiners in October 2005, July 2007, April 2014, and October 2017 each found that there was no possible connection between the knee conditions and the service-connected low back disorder, but offered no rationale for that determination. Specifically, the April 2014 examiner stated only that there was insufficient evidence to establish a nexus between the low back and knee conditions without detailing any evidence in the claims file to support the conclusory determination. More recently, the October 2017 VA examiner noted that the meniscal tear that resulted in the Veteran’s 1992 surgery was the first time that he received treatment for his knees, and discussed the fact that meniscal tears result from trauma or injury to the knees rather than being aggravated by a different musculoskeletal disease. The October 2017 examiner also acknowledged that the Veteran was 70 years old at the time of the opinion, which also contributed to his bilateral knee conditions. As a reminder, secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, there exist two potential theories of entitlement to secondary service connection — namely, causation under § 3.310(a), and i aggravation under § 3.310(b). While the VA examiners of record mentioned aggravation, their rationales did not address this prong of the secondary service connection analysis, and apparently ignored any possible impact that the low back disorder in particular could have on the Veteran’s bilateral knee conditions. As such, with regards to the issue of aggravation, the VA etiology opinions of record have limited probative value. By contrast, Dr. A.A.’s August 2018 opinion addresses the issue of aggravation and provides a full rationale for the conclusion that the bilateral knee conditions were in fact aggravated permanently by the low back disorder. Dr. A.A. noted that the Veteran had diffuse damage through the meniscus which suggested that the injury to the meniscal was due to degenerative changes rather than any one acute injury, as the October 2017 VA examiner concluded. She also dismissed the October 2017 examiner’s reference to the Veteran’s age as an explanation for the noted degenerative changes in the Veteran’s bilateral knees, highlighting instead that he underwent surgery more than 25 years prior when he was much younger. Dr. A.A. then referenced (and included) medical literature demonstrating the impact that many years of low back disorder symptomatology can have on an individual’s knees. Ultimately, Dr. A.A. concluded that the Veteran had an antalgic gait caused by the low back disorder that permanently aggravated his bilateral knees and resulted in his development of bilateral knee conditions. As Dr. A.A. reviewed the Veteran’s claims file and provided a thorough rationale that took into consideration the possibility that the Veteran’s bilateral knees were aggravated by the symptoms of his low back disorder, and supported her determination with reference to medical literature, the Board finds that her opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Moreover, when compared with the minimally probative opinions of the various VA examiners of record, the Board finds that the evidence is at least in equipoise with regards to the issue of whether the bilateral knee conditions were permanently aggravated by a service-connected disability. Accordingly, the Board concludes that service connection is warranted for bilateral knee conditions on a secondary basis. 38 C.F.R. § 3.310(b). Both claims are thus granted in full. REASONS FOR REMAND Entitlement to service connection a prostate condition is remanded. The Veteran has a long history of experiencing genitourinary issues related to an enlarged prostate, to include undergoing transurethral resection of the prostate (TURP) in 1999. He has been diagnosed with BPH in the past and continues to receive treatment for the condition. However, he maintains that he was diagnosed with prostate cancer and that his ongoing genitourinary problems are residual conditions attributable to the cancer. A new VA examination is therefore necessary to verify what diagnosis, if any, can account for the Veteran’s long history of symptomatology. An opinion must also be elicited as to the etiology of any diagnosed prostate condition, to include a determination of whether such condition is was caused or aggravated by a service-connected disability. Entitlement to an increased rating for bilateral lower extremity peripheral neuropathy is remanded. The Veteran is in receipt of separate 20 percent ratings for left and right lower extremity peripheral neuropathy, and seeks a rating in excess of that 20 percent. During the appeal period, the severity of the bilateral lower extremity peripheral neuropathy was evaluated by VA examiners for compensation purposes in April 2010 and agan in April 2014. Neither examiner found that the peripheral neuropathy resulted in anything more than incomplete paralysis of the sciatic nerve that was mild in severity. Specifically, the April 2010 examiner noted a loss of sensation in the bilateral lower extremities due to the peripheral neuropathy but did not evaluate the severity of the loss of sensation. The April 2014 examiner noted decreased sensation through the lower extremity as well as pain and numbness of mild severity; however, they did not indicate any functional impairment attributable specifically to the lower extremity neuropathy. A review of the VA treatment records, however, reflects that the Veteran has reported experiencing lower extremity weakness for the entire period of the appeal, with the weakness being evaluated as moderate to severe. The most recently available VA records dated in 2018 reflect that the Veteran did not ambulate on his own and instead utilized a wheelchair propelled by family members. This documented weakness was not detailed at all on either VA examination, and suggests that the Veteran’s bilateral lower extremity neuropathy may be more severe than the prior VA examiners found it to be. On remand, the Veteran should be scheduled for a new VA examination to evaluate whether he experiences lower extremity weakness, and, if so, the severity of that weakness and its functional impact on his ability to carry out his activities of daily living and work. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Entitlement to an earlier effective date for the initial award of service connection for diabetes mellitus, type II is remanded. In an August 2014 notice of disagreement, the Veteran requested an effective date prior to July 16, 2002 for the award of service connection for diabetes mellitus, type II. In a March 2015 Board remand, this specific issue was erroneously not listed as one requiring the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the agency of original jurisdiction must issue a SOC to the Veteran that adjudicates the issue of an earlier effective date for the award of service connection for diabetes mellitus, type II. Entitlement to an earlier effective date for the award of service connection for bilateral upper and lower extremity peripheral neuropathy, as well as entitlement to an increased rating for diabetes mellitus, type II, is remanded. The claims of entitlement to an earlier effective date for the award of service connection for bilateral upper and lower extremity peripheral neuropathy, as well as the claim of entitlement to an increased rating for diabetes mellitus, type II, are remanded, as such claims are inextricably intertwined with, and potentially affected by the outcome of, the claim seeking an earlier effective date for the award of service connection for diabetes mellitus, type II. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board notes that each of the four peripheral neuropathy ratings was assigned as secondary to type II diabetes mellitus. The matter is REMANDED for the following action: 1. Issue a SOC to the Veteran which addresses the issue of entitlement to an earlier effective date for the award of service connection for diabetes mellitus, type II. The Veteran should be given the appropriate opportunity to respond to the SOC. If, and only if, he perfects the appeal should that issue be recertified to the Board. 2. Thereafter, schedule the Veteran for a VA medical examination to address the nature and etiology of any diagnosable prostate condition as well as the severity of the bilateral lower extremity neuropathy. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to any symptoms of a prostate condition. All necessary special studies or tests must be accomplished. The examiner must first provide a diagnosis or diagnoses to account for the Veteran’s documented genitourinary symptomatology that is not already attributed to a service-connected disability. Then, if a prostate condition, to include BPH and/or prostate cancer, is diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed prostate condition is related to the Veteran’s active service. Regardless of the answer to that query, the examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed prostate condition was caused or aggravated by one or more service-connected disabilities (listed in May 2014 and June 2016 rating decisions) or a combination therefrom. The examiner should note that the term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and returned to the baseline level of disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated any diagnosed prostate condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. As for the bilateral lower extremity neuropathy, the examiner is asked to evaluate the severity of the condition, with specific attention paid to the Veteran’s documented reports of having experienced lower extremity weakness. The examiner should state whether the Veteran experiences functional impairment in either the left or right lower extremity that is more than sensory in nature, and, if so, the examiner should provide an opinion as to the severity of any impairment that is more than sensory. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. The Board notes the anatomical distinction between the conditions on appeal and recognizes that separate opinions may be necessary in this case. However, the Board leaves this to the discretion of the RO and/or the examining medical facility. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel