Citation Nr: 18159170 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 13-02 858 DATE: December 19, 2018 ORDER Service connection for bilateral upper extremity peripheral neuropathy is denied. An increased disability rating in excess of 20 percent for residuals, prostate cancer is denied. An increased disability rating in excess of 20 percent for diabetes mellitus (diabetes) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A current bilateral upper extremity peripheral neuropathy disability has not been demonstrated. 2. Throughout the period on appeal, the Veteran’s residuals, prostate cancer, disability, is manifested at worst by a daytime voiding interval of one-to-two hours, a nighttime voiding frequency of three-to-four times per night, without leaking, use of appliance, or required catheterization for obstructed voiding. 3. The Veteran’s service-connected diabetes requires the use of oral medication and a restricted diet, but not the use of insulin or regulation of his activities. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral upper extremity peripheral neuropathy disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for a disability rating in excess of 20 percent for residuals, prostate cancer, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528. 3. The criteria for a disability rating in excess of 20 percent for diabetes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1969 to September 1971 with noted service in the Republic of Vietnam from October 1970 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and January 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in February 2015, at which time the above issues were remanded for additional development. The case has been returned to the Board for further appellate review at this time. Service Connection for Bilateral Upper Extremity Peripheral Neuropathy Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(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 or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he incurred bilateral upper extremity peripheral neuropathy directly as a result of military service or proximately due to service-connected diabetes. The Board finds that service connection is not warranted for either leg. The medical evidence of record does not demonstrate the presence of a right or left upper extremity peripheral neuropathy since the claim was submitted in May 2012. September 2012 and April 2015 VA examiners both found that the Veteran did not have peripheral neuropathy of either upper extremity. Moreover, hundreds of pages of VA treatment records fail to demonstrate that diagnosis. There is no other competent and credible evidence demonstrating a current bilateral upper extremity peripheral neuropathy disability. To the extent the Veteran has reported or claimed certain symptoms, the Board notes that he is not competent to diagnose such a disability. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise when the question is a complex one, as it is in this case. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran has such expertise. Based on the forgoing, the Board finds that service connection for a bilateral upper extremity peripheral neuropathy disability is not warranted. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. As there is not an approximate balance of evidence, that benefit of the doubt rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Prostate Cancer The Veteran claims that his service-connected residuals, prostate cancer disability is more severe than the 20 percent disability rating currently assigned. The Board concludes that an increased disability rating is not warranted. The Veteran filed the current claim for an increased rating in May 2012; therefore, the relevant focus for adjudicating the increased rating claim is the period beginning May 2011, one year prior to the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2014). The Veteran’s residuals, prostate cancer, disability has been evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, following the cessation of treatment for active prostate cancer, the residuals are to be rated based on either renal dysfunction or voiding dysfunction, whichever is predominant. In this case, the Veteran’s cancer has been in remission and he ended his treatment for prostate cancer in 2009, prior to the current claim. Moreover, renal dysfunction has not been demonstrated throughout the claim. As such, the Board finds that his voiding dysfunction is predominant and the proper basis for rating the disability. Voiding dysfunction should be rated as urine leakage, urinary frequency, or obstructed voiding. Regarding urine leakage, the next highest disability rating, a 40 percent rating, is warranted when the wearing of absorbent materials must be changed 2 to 4 times per day. As for urinary frequency, a 40 percent evaluation is warranted with daytime voiding intervals of less than an hour, or awakening to void 5 or more times per night. The next highest rating provided for obstructed voiding, a 30 percent rating, is warranted where urinary retention requires intermittent or continuous catheterization. See 38 C.F.R. § 4.115a. The medical and lay evidence of record, including hundreds of pages of VA treatment and a VA examination in September 2012 and April 2015 do not demonstrate that the Veteran wore absorbent materials. Both VA examiners specifically stated that the Veteran did not have urinary leakage or require the use of appliances. The evidence also demonstrates that the Veteran’s average daytime voiding interval was one-to-two hours and he awakened to void three-to-four times per night. Finally, there is no evidence of any catheterization required during the claims period. While the Veteran is competent to report lay-observable symptoms, the medical and lay evidence does not demonstrate that the Veteran’s urinary symptoms were worse than noted above. Given the lack of competent and credible evidence in support of the claim, the evidence does not demonstrate that an increased rating in excess of 20 percent for residuals, prostate cancer, is warranted. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for an increased rating for residuals, prostate cancer, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).   Diabetes Mellitus The Veteran claims that his service-connected diabetes is more severe than the 20 percent disability rating currently assigned. The Board concludes that an increased disability rating is not warranted. The Veteran filed the current claim for an increased rating in May 2012; therefore, the relevant focus for adjudicating the increased rating claim is the period beginning May 2011, one year prior to the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2014). The Veteran’s diabetes has been evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913. Under 38 C.F.R. § 4.119, Diagnostic Code 7913, the criteria for the next highest disability rating, a 40 percent rating, are met where diabetes requires insulin, restricted diet, and regulation of activities. The 60 percent rating criteria require insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. In addition to the criteria for the 60 percent rating, a 100 percent rating requires more than one daily insulin injection and episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. The criteria for rating diabetes are conjunctive, meaning that each criterion for any given rating must be met before that rating is awarded. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). Therefore, in order for a higher rating to be warranted in this case, the evidence must first demonstrate that the Veteran’s diabetes requires insulin, restricted diet, and regulation of activities. Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating or higher under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). After a review of all the evidence, the Board finds that a preponderance of the evidence is against the claim for an initial rating in excess of 20 percent for service-connected diabetes. The medical evidence demonstrates that the Veteran’s diabetes has been treated with oral medication and a restricted diet. There is no medical evidence demonstrating the use of insulin to treat his diabetes, nor is there any evidence of doctor prescribed regulation of his activities. Moreover, the Veteran has not reported that he uses insulin and, although he reported that he has to exercise in order to help manage his diabetes, he has never reported that he must avoid strenuous activities in order to manage or treat his diabetes. The Board notes that the Veteran has raised the possibility of complications from diabetes, namely a bilateral upper and lower extremity peripheral neuropathy. Each of these contentions have been separately adjudicated and are not on appeal. There is no medical or lay evidence of any other complication from diabetes in the record. Given the lack of competent and credible evidence in support of the claim, the evidence does not demonstrate that an increased rating in excess of 20 percent for diabetes is warranted. Finally, the Board notes that neither the Appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for an increased rating for diabetes, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND As noted in the Veteran’s representative’s November 2018 brief, the evidence of record does not include a complete opinion regarding a proximate connection between obstructive sleep apnea, hypertension, or hemorrhoids with service-connected diabetes and prostate cancer/treatment thereof. Additionally, with respect to the hypertension claim, the Board recognizes that during the pendency of this claim, the National Academy of Sciences (NAS) has shifted the category from “limited to suggestive” to “sufficient” for association to herbicides in a November 2018 press release. The Board reflects that the Veteran has been presumed exposed to herbicides in this case, and therefore a medical opinion with regards to whether the Veteran’s hypertension is related to his herbicide exposure is also necessary. Accordingly, the sleep apnea, hypertension, and hemorrhoid claims are remanded in order to obtain additional medical opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The Veteran’s TDIU claim is intertwined with the above remanded claims, and it is therefore also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Memphis VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with an examiner who has not previously participated in this case in order to determine whether his obstructive sleep apnea related to service or secondary to his service-connected diabetes mellitus and/or prostate cancer. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must opine whether the Veteran’s obstructive sleep apnea at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service, to include the Veteran’s presumed herbicide exposure therein. The examiner must take as conclusive fact that the Veteran is exposed to herbicides during military service; the examiner is additionally reminded that merely stating that the disease is not on the list of presumed disease related to herbicide exposure is not an adequate rationale for a negative opinion. Next, if the examiner does not find that the Veteran’s obstructive sleep apnea is directly related to military service, the examiner must opine whether his obstructive sleep apnea at least as likely as not are (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected diabetes mellitus and/or prostate cancer. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA with an examiner who has not previously participated in this case in order to determine whether his hemorrhoids are related to service or secondary to his service-connected diabetes mellitus and/or prostate cancer. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must opine whether the Veteran’s hemorrhoids at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service, to include the Veteran’s presumed herbicide exposure therein. The examiner must take as conclusive fact that the Veteran is exposed to herbicides during military service; the examiner is additionally reminded that merely stating that the disease is not on the list of presumed disease related to herbicide exposure is not an adequate rationale for a negative opinion. Next, if the examiner does not find that the Veteran’s hemorrhoids is directly related to military service, the examiner must opine whether his hemorrhoids at least as likely as not are (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected diabetes mellitus and/or prostate cancer. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his hypertension is due to his military service or his service-connected psychiatric disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the examiner should state whether the Veteran’s current hypertension at least as likely as not (50 percent or greater probability) began in service or within one year of discharge therefrom, or is otherwise the result of military service, to include the Veteran’s presumed herbicide exposure therein. Specifically, the examiner should consider any noted blood pressure readings in service, or within one year after discharge therefrom, as well as the notation of borderline hypertension therein. The examiner should address whether any readings and the notation of borderline hypertension during service are initial manifestations of the Veteran’s hypertension. Regarding the above opinion as to relation to herbicides, the examiner must take as conclusive fact that the Veteran is exposed to herbicides during military service; the examiner is additionally reminded that merely stating that the disease is not on the list of presumed disease related to herbicide exposure is not an adequate rationale for a negative opinion. Finally, the examiner MUST discuss the new November 2018 NAS study that indicated that hypertension had switched to the “sufficient” category, and what, if any, effect such study has on the examiner’s rationale. Next, if the examiner determines that the Veteran’s hypertension is not directly related to service, the examiner should also opine whether any hypertension at least as likely as not was either ((a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected diabetes mellitus and/or prostate cancer. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should address any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B., Counsel