Citation Nr: 1808774 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-06 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to increased disability rating for degenerative joint disease of the lumbar spine status post herniated nucleus pulposus status post fusion surgery at L5-S1, and intervertebral disc syndrome, evaluated as 20 percent disabling until July 21, 2014 and 40 percent thereafter. 2. Entitlement to initial increased disability rating of midline posterior scar (now evaluated as additional surgical scar), currently noncompensable. 3. Entitlement to initial increased disability rating of iliac bone graft harvest scar (now evaluated as surgical scar), noncompensable until July 21, 2014, and 10 percent thereafter. 4. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer. 6. Entitlement to special monthly compensation based on loss of use. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran initially requested a hearing before the Board in his March 2013 VA Form 9. However, in August 2014 he rescinded this desire in written correspondence, thus the Board finds that there are no pending hearing requests. This appeal initially included the issue of service connection for radiculopathy of the left lower leg. A September 2014 rating decision awarded entitlement to this claim, thus it is no longer on appeal. During the pendency of this claim, the Veteran was awarded increased ratings for his lower back disability, and for his iliac bone graft harvest scar disability. The Veteran has not indicated satisfaction with these higher evaluations. Inasmuch as higher ratings for the disabilities are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to service connection for a left hip disorder has been raised by the record in a September 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See September 2014 VA Form 21-4138 ("please note my claim is for my left hip.") Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board must remand the issues on appeal for additional evidentiary and procedural development, which development is described below. The record indicates that potentially relevant treatment records pertaining to the severity of the Veteran's back and related scarring disability symptoms are outstanding and not associated with the claims file. Specifically, the Veteran has indicated ongoing treatment at the Dallas VAMC including "MRIs and CT scans which show the degenerative nature of my condition." However, the most recent VAMC treatment documentation of record is from October 2014, a mere two months after this statement was received in August 2014. Thus, updated VAMC medical records must be associated with the claims file prior to adjudication of his lower back related disabilities. The record appears to indicate that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. See February 1983 SSA Disability Determination Division correspondence. There is no indication in the record that an attempt to obtain the SSA medical documentation has been made. Regarding the evaluation of the Veteran's low back and related scar disabilities, the Veteran was last afforded VA examinations for these conditions in October 2014. Since that time, the Veteran has alleged that these conditions have worsened and that he is still undergoing treatment in the Dallas VAMC. See August 2014 VA Form 21-4138; see also December 2017 Informal Hearing Presentation ("appellant asserts the VA examination conducted October 7, 2014, does not accurately portray the current disability picture"). Accordingly, the Veteran should be scheduled for VA examinations to determine the current severity of his back and related scarring disability symptoms. See 38 C.F.R. §§ 3.326, 3.327 (2016) (noting that reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, regarding the lower back, range of motion testing was not documented in active motion, passive motion, weight-bearing, and non-weight-bearing during the October 2014 VA examination. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). As such, the Veteran must be afforded updated VA examinations. Regarding entitlement to service connection for prostate cancer, and the inextricably interrelated issue of erectile dysfunction as secondary to the prostate cancer, the Veteran contends that his cancer is due to herbicide exposure stemming from his service in Okinawa, Japan. See April 2011 VA Form 21-4138. Treatment records reflect that the Veteran has current diagnoses of prostate cancer and erectile dysfunction. See i.e. January 2012 VAMC Radiation Oncology note ("Diagnosis: Prostate Cancer...I have discussed with him several approaches for his erectile dysfunction.") The law provides a presumption of service connection for certain diseases, to include ischemic heart disease and prostate cancer, that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean DMZ during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116 (West 2012); 38 C.F.R. § 3.307 (a)(6) (2017). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). The Veteran's DD Form 214 reflects that he had over a year of foreign and/or sea service and personnel records associated with the claims file indicate duty in Okinawa, Japan. His record does not reflect, and the Veteran does not contend, that he served in the Republic of Vietnam or in one of the units designated by the Department of Defense as having served in or near the Korean DMZ. As such, he is not presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (a)(6). Rather, the Veteran contends that he was directly exposed to herbicides while he was stationed in Okinawa, Japan. The VBA Adjudication Manual, M21-1, provides certain development procedures for claims for herbicide exposure in locations other than the Republic of Vietnam, the Korean Demilitarized Zone, and Thailand. See M21-1.IV.ii.1.H.7.a. The M21-1 provides that after the Veteran provides the approximate dates, location(s), and nature of the alleged exposure to herbicides, the information must be furnished to Compensation Service, and a review of DOD's inventory of herbicide operations must be requested to determine whether herbicides were used as claimed. If Compensation Service does not confirm that herbicides were used as claimed, the information provided by the Veteran must be submitted to the Joint Service Records and Research Center (JSRRC). There is no indication that the RO attempted to verify the Veteran's alleged herbicide exposure in Okinawa with either Compensation Service or JSRRC. Rather, a November 2012 VA Formal Finding On Lack of Information memorandum only indicates that information was sought regarding the Veteran's service/exposure in Vietnam, which the record does not reflect nor does the Veteran allege. Accordingly, the Veteran's claim must be remanded and developed consistent with M21-1 procedures. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran proper notice with respect to the prostate cancer claim based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the M21-1. Pursuant to the VA Adjudication Manual, M21-1, Part IV, Subpart ii, 2.C.10.o., the Veteran should be asked again to provide the approximate dates, location, and nature of his alleged exposure to Agent Orange while stationed in Okinawa, Japan, and elsewhere, in an attempt to verify herbicide exposure on a factual basis in locations other than the Republic of Vietnam. 2. Then forward the Veteran's description of exposure to the Compensation Service for a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. See M21-1, Part IV, Subpart ii, 2.C.10.o. 3. If the Compensation Service's review does not confirm herbicide use as alleged, then a request is to be sent to the Joint Service Records Research Center (JSRRC) for verification of herbicide exposure. Id. 4. Obtain any outstanding VA treatment records, including those from the Dallas VAMC beyond October 2014. 5. Contact the Social Security Administration (SSA) and request that SSA provide VA with the Veteran's complete SSA records, including any administrative decisions and all underlying medical records. A copy of any records obtained from SSA, to include a negative reply, should be included in the claims file. 6. Following completion of the above, schedule the Veteran for an updated VA examinations to evaluate the current severity of his low back and related scarring disabilities, in compliance with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), to the extent possible. 7. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).