Citation Nr: 18156244 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-00 001A DATE: December 11, 2018 ORDER A compensable rating for erectile dysfunction (ED) is denied. A rating in excess of 20 percent for diabetes mellitus type II (diabetes) is denied. A rating for bilateral lower extremity peripheral neuropathy currently rated as 10 percent disabling prior to April 25, 2016 and 20 percent disabling thereafter is denied. An earlier effective date prior to December 6, 2012 for bilateral lower extremity peripheral neuropathy is denied. A total disability rating based on individual unemployability (TDIU) is granted. The reduction in rating for prostate cancer was proper. FINDINGS OF FACTS 1. The Veteran’s erectile dysfunction has manifested with loss of erectile power, but without deformity of the penis. 2. The Veteran’s diabetes requires insulin and restricted diet but not regulation of activities. 3. Prior to April 25, 2016, the Veteran’s bilateral lower extremity peripheral neuropathy was not manifested by moderate incomplete paralysis. From April 25, 2016, the Veteran’s bilateral lower extremity peripheral neuropathy was not manifested by moderately severe incomplete paralysis 4. The record does not reflect the Veteran filed a claim for service connection for bilateral lower extremity peripheral neuropathy prior to December 6, 2012. 5. The Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. 6. The reduction of the 100 percent rating assigned to the Veteran’s prostate cancer is not a formal rating reduction, as the “reduction” was by operation of law in accordance with 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.7, 4.115b, DC 7522. 2. The criteria for entitlement for an increased rating for diabetes currently rated as 20 percent disabling have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, DC 7913. 3. The criteria for a rating in excess of 10 percent prior to April 25, 2016 and 20 percent thereafter for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.124a, DC 8520. 4. The criteria for an effective date prior to December 6, 2012 for the award of bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. 6. The reduction of the 100 percent rating for prostate cancer, effective January 1, 2016, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.1, 4.2, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to December 1969. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Erectile Dysfunction The Veteran seeks a compensable rating for erectile dysfunction, which has been rated as noncompensable since the grant of service connection. Erectile dysfunction is rated analogously under DC 7522 for “deformity of the penis with loss of erectile power.” 38 C.F.R. § 4.115b, DC 7522. A 20 percent evaluation is the only compensable rating assignable under this diagnostic code. In order to be assigned a 20 percent evaluation, two distinct elements are required: the Veteran must have a penile deformity and there must be evidence of loss of erectile power. Id. The Veteran was afforded an examination for his erectile dysfunction in June 2016. The examiner noted the Veteran had erectile dysfunction and was not able to achieve an erection. However, the examiner also noted the Veteran’s penis was normal and did not note any external or internal deformities. The Veteran’s medical records also indicate he takes medication for his condition and continues to be monitored for his erectile dysfunction. However, the Veteran’s medical records are negative for mention of any deformity of the penis, external or internal. While the Veteran’s records indicate he suffers from loss of penile power, the records do not indicate any penile deformity and therefore, the claim must be denied. Diabetes The Veteran’s diabetes is rated under DC 7913. Pursuant to DC 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Within the criteria for a 100 percent rating, “Regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. The Veteran contends his diabetes is more severe than his 20 percent rating warrants. The Veteran has had multiple examinations for his diabetes. In a June 2013 examination, the examiner noted the Veteran took oral medication for his diabetes but did not have regulation of activities. The Veteran saw his health care provider less than two times per month for his diabetes and had no hospitalizations, unintentional weight loss, or progressive loss of strength due to his diabetes. The Veteran was afforded another examination for his diabetes in June 2016. The examiner noted the Veteran’s diabetes were controlled by a restricted diet and oral medication, but the Veteran did not have to regulate his activities. The examiner noted the Veteran saw his health care provider less that twice per month for his diabetes and had no progressive unintentional weight loss or loss of strength due to diabetes. The Veteran’s medical records show he continues to seek treatment for his diabetes. The Veteran has also been seen for diabetic foot care. However, his records do not show he requires regulation of his activities as required to receive a higher 40 percent rating. Therefore, the claim must be denied. Bilateral Lower Extremity Peripheral Neuropathy The Veteran is currently rated under DC 8520 for his bilateral lower extremity peripheral neuropathy. Under DC 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). The Veteran contends that prior to April 25, 2016, his peripheral neuropathy was worse than indicated by his 10 percent rating and from April 25, 2016, his peripheral neuropathy has been worse than indicated by his 20 percent rating. The Veteran has had multiple examinations for his peripheral neuropathy. A June 2013 examiner noted the Veteran had moderate right lower extremity intermittent pain and left lower extremity mild intermittent pain with decreased sensation bilaterally. The examiner opined the Veteran had mild incomplete paralysis in his bilateral lower extremities. The Veteran had another examination for his peripheral neuropathy in June 2016. The examiner noted the Veteran had severe bilateral lower paresthesias, moderate bilateral lower extremity numbness, and decreased vibration sensation. The examiner reported the Veteran had no muscle atrophy and opined the Veteran had moderate bilateral lower extremity incomplete paralysis. The Veteran’s medical records show he continues to seek treatment for this condition. On several occasions, the Veteran complained of leg and foot pain, tingling, and numbness. (See March, May 2013, August 2017, January 2018 medical records.) However, while records show the Veteran continues treatment for his condition, the Veteran’s medical records do not show that prior to April 25, 2016 the Veteran had moderate incomplete paralysis and do not show that from April 25, 2016, the Veteran had moderately severe incomplete paralysis. Pertaining to all the increased rating claims above, neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board acknowledges the Veteran’s statements that his erectile dysfunction, diabetes, and bilateral lower extremity peripheral neuropathy cause him problems, distress, pain, and he believes they are worse than his current ratings indicate. However, while the Veteran is competent to report symptoms of these disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the extent and severity of his health conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record. While the Veteran’s disabilities clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his disabilities did not cause him problems, there would be no basis for the ratings above, the only question is the degree. Earlier Effective Date In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a “facts found” basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The Veteran contends his effective date for his award of service connection for his bilateral lower extremity peripheral neuropathy should be prior to December 6, 2012. The Veteran is currently in receipt of the earliest effective date legally available. VA received the Veteran’s claim for service connection for peripheral neuropathy on December 6, 2012. The record does not show the Veteran filed either a formal claim or an informal claim for lower extremity peripheral neuropathy prior to this date. The Veteran separated from service in December 1969 and his claim was not received within one year of his separation from service. Therefore, since the Veteran is currently rated for his peripheral neuropathy to the date of his present claim and since that claim was not received within one year after separation from service, an earlier effective date is not available and the claim will be denied. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the claim must be denied. TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2017). The Veteran had a combined 100 percent rating from November 3, 2010 to October 1, 2013. The Veteran had a combined rating of 70 percent as of April 25, 2016 with his prostate cancer rated as 40 percent disabling. The Veteran is also service connected for diabetes, bilateral lower extremity peripheral neuropathy, and erectile dysfunction as discussed above. The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran previously worked as a material handler and has a high school level education with no special training. None of the VA examiners have opined the Veteran’s service connected disabilities render him unemployable. However, the Veteran has also had an independent vocation assessment. This examiner opined the Veteran’s service connected disabilities rendered him unemployable. Additionally, the examiner noted with the Veteran’s education level and his lack of computer skills, the Veteran would find it hard to maintain gainful employment. The Veteran submitted a statement in April 2016 detailing how his voiding dysfunction and bladder control issues made it difficult for him to leave the house or to be away from a bathroom. The Veteran also reported his bilateral peripheral neuropathy made it painful for him to remain in a seated position or walk for long periods of time. The Board has reviewed the evidence and finds it to be at least in equipoise as to whether the Veteran’s service connected disabilities, as a whole, render him unemployable. Granting the benefit of the doubt to the Veteran, the Board finds the Veteran is unable to maintain gainful employment due to his service-connected disabilities and therefore, a TDIU is granted. Reduction Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance is prepared setting forth all material facts and reasons. The veteran is to be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and is to be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action is taken and the award is reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran of the final rating expires. 38 C.F.R. § 3.105 (e). Under DC 7528, a 100 percent rating may be assigned for malignant neoplasms of the genitourinary system. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, the disorder is rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Simply stated, in these cases, in general, the 100 rating does not normally go on for more than six months. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed two to four times per day warrants a 40 percent disability rating. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent disability rating. 38 C.F.R. § 4.115a. VA granted the Veteran’s claim of entitlement to service connection for prostate cancer in May 2011, with a 100 percent rating assigned from November 3, 2010. A May 2012 VA examination report indicates that the Veteran was diagnosed with prostate cancer and had been treated with surgery in April 2011. The examiner noted the Veteran’s prostate cancer was in remission. In November 2012, the RO proposed a reduction of the 100 percent rating assigned to the Veteran’s prostate cancer. This reduction proposal was accompanied by a notice letter, which apprised the Veteran of the Veteran’s right to request a hearing and informed the Veteran that his benefits would be reduced if he failed to submit additional evidence within 60 days. In July 2013, the RO discontinued the 100 percent rating assigned to the Veteran’s prostate cancer and rated the Veteran’s prostate cancer residuals as 40 percent disabling under DC 7528, with an effective date of October 1, 2013. A subsequent June 2016 VA examination noted the Veteran’s prostate cancer was in remission with treatment performed in 2010. The Board has considered whether the claim at issue constitutes a formal reduction under the provisions of 38 C.F.R. §§ 3.343 and 3.344. The Board does not find that these provisions are applicable in the present case. The provisions of 38 C.F.R. § 4.115b, DC 7528 contain a temporal element for continuance of a 100 percent rating for prostate cancer. The 100 percent rating assigned to the Veteran’s prostate cancer ceased to exist by operation of the note to DC 7528. The basis for the Veteran’s 100 percent rating, in the absence of local recurrence or metastases of his prostate cancer as required under DC 7528, no longer exists. See Rossiello v. Principi, 3 Vet. App. 430, 433 (1992). The Board acknowledges the Veteran’s April 2016 statement in which he detailed the effects of his residuals of prostate cancer, how it causes stress, embarrassment, and requires the Veteran to be near a bathroom at all times. (Continued on the next page)   However, the evidence of record, including the VA examinations described above and medical treatment records, does not indicate the Veteran suffered from a local recurrence or metastasis of his prostate cancer at the time July 2013 rating decision went into effect. Moreover, the evidence of record does not indicate the Veteran has suffered from local recurrence or metastasis of his prostate cancer during the period on appeal. The initial 100 percent rating assigned to the Veteran’s prostate cancer was properly reduced. See 38 C.F.R. § 4.115b, DC 7528. While the Veteran is clearly having problems from this issue, these problems are addressed in the ratings of those problems, several of which have been cited above. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel