Citation Nr: 20046824 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 19-22 806 DATE: July 13, 2020 REMANDED Entitlement to service connection, to include on a secondary basis, for low back disability is remanded. Entitlement to service connection for problems with stumbling and balance, to include as due to herbicide exposure, is remanded. Entitlement to service connection, for cancer in the neck, throat, and lymph nodes, to include as due to herbicide exposure, is remanded. Entitlement to service connection for uncontrollable tremors and jerks in the bilateral hands, to include as due to herbicide exposure, is remanded. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer is remanded. Entitlement to an initial compensable rating for erectile dysfunction is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to May 1967. These matters are before the Board of Veterans Appeals (Board) on appeals from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection, to include on a secondary basis, for low back disability is remanded. The Veteran contends that he has had continued lower back pain since receiving radiation treatment for his prostate cancer. See November 2016 NOD. He reported that he did not have lower back problems prior to receiving radiation treatment for his prostate cancer. A review of the record shows that VA opinion was obtained in December 2015. See December 2015 C&P Exam. However, the Board notes that the examiner did not opine as to whether the low back pain was caused by the radiation treatment for his prostate cancer, and instead noted that there was not a metastatic spread of the prostate cancer in support of the negative etiological opinion. An opinion on whether the prostate cancer, to include any treatment, aggravated the low back disability also has not been obtained. Thus, a remand is warranted to obtain such opinions. Entitlement to service connection, to include on a secondary basis, for cancer in the neck, throat, and lymph nodes is remanded. Entitlement to service connection, to include on a secondary basis, for problems with stumbling and balance is remanded. Entitlement to service connection, to include on a secondary basis, for uncontrollable tremors and jerks in the bilateral hands is remanded. The Veteran indicates that the cancer in the neck, throat, and lymph nodes, his problems with stumbling and balance, and the uncontrollable tremors and jerks in his right and left hand are related to his conceded herbicide exposure during active service. See November 2016 NOD and December 2016 Medical Treatment Record – Government Facility. The Board acknowledges that a positive opinion was submitted in support of these claims in December 2016. See December 2016 Medical Treatment Record – Government Facility. However, the Board notes that the reviewing provider did not provide an adequate rationale in support of the opinion and did not identify the applicable diagnoses as related to the Veteran’s reported problems with stumbling and balancing, and uncontrollable tremors and jerks in the right and left hand. Nevertheless, a review of the treatment records notes a prior medical history including benign paroxysmal positional vertigo and initial impression of essential tremor. See June 2019 CAPRI. As highlighted in the June 2020 appellate brief, the Board finds that an examination is necessary as the low threshold for obtaining VA examinations has been met in this case. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, on remand, the examiner should clarify the diagnoses for the reported symptoms of problems with stumbling and balancing, and uncontrollable tremors and jerks in the right and left hand. Furthermore, the Board highlights that service connection is not precluded solely when there is no diagnosis, if there is nevertheless functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Entitlement to a rating in excess of 20 percent for residuals of prostate cancer is remanded. The Veteran has indicated worsening symptoms since the last VA examination in November 2015. See November 2016 NOD; see also June 2020 Appellate Brief. Specifically, he reports waking six or more times at night to urinate, urinating on average two or more times per hour, and use of pads due to leakage. See November 2016 NOD. The Veteran also reported bowel dysfunction as a result of his prostate cancer. See id. During the November 2015 VA examination, the examiner only noted nighttime awakening to void three to four times, daytime interval between one and two hours, and no mention of bowel dysfunction or use of pads. Thus, a remand is warranted to obtain an updated VA examination to determine the current severity of the residuals of his prostate cancer. Entitlement to an initial compensable rating for erectile dysfunction is remanded. The Veteran reported having penile deformity, total loss of erectile power, and inability to penetrate. See November 2016 NOD. As the Veteran has not been provided a VA examination specifically related to his erectile dysfunction, remand is warranted to determine the current severity of his erectile dysfunction, to include determining if there is any penile deformity that would warrant a compensable rating under DC 7522. See 38 C.F.R. § 4.115b, DC 7522. Entitlement to a TDIU. The Veteran also reported that he was 100 percent disabled due to his prostate cancer and could not work. See July 2015 Congressionals. Accordingly, the Board finds that a claim for a TDIU has been raised by the record and is part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records pertaining to the remaining claims on appeal, to include any VA treatment records prior to 2007 and between 2008 and 2013. Document any negative responses received. 2. Develop the raised claim for TDIU. 3. After completing development #1, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by appropriate examiners to determine the etiology of the Veteran’s cancer in the neck, throat, and lymph nodes, his problems with stumbling and balance, and the uncontrollable tremors and jerks in his right and left hand. Following a complete review of the claims file, the reviewing professional is requested to conduct the following: (a) Clarify the Veteran’s diagnoses related to his reported problems with stumbling and balancing, and uncontrollable tremors and jerks in his right and left hand (i.e. benign paroxysmal positional vertigo and essential tremor). If the Veteran’s reported problems with stumbling and balancing, and uncontrollable tremors and jerks in his right and left hand cannot be attributed to underlying diagnoses, still address whether any such conditions manifest in functional impairment. A condition manifested by functional impairment is in fact a disability for VA purposes. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability(ies), specifically cancer in the neck, throat, and lymph nodes, his problems with stumbling and balance, and the uncontrollable tremors and jerks in his right and left hand, had its clinical onset during service, or is attributable to any in-service disease, event, or injury, particularly the Veteran’s presumed in-service herbicide exposure. The examiner(s) should provide a rationale for all opinions. If the examiner(s) cannot provide an opinion without resorting to speculation, the examiner should explain why this is so. The examiner should note the private etiological opinion, received in December 2016. 4. After completing development #1, provide an addendum to the VA opinion by appropriate examiners to determine the etiology of the Veteran’s low back disability. Following a complete review of the claims file, the reviewing professional is requested to conduct the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the low back disability is caused by his service-connected prostate cancer, to include radiation treatment of his prostate cancer. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the low back disability is aggravated by his service-connected prostate cancer, to include radiation treatment of his prostate cancer. The examiner should address the Veteran’s contentions that he did not start experiencing low back pain until he received radiation treatment for his prostate cancer. 5. Thereafter, schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate examiner to determine the current severity of his residuals of prostate cancer. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by, the examiner. A complete history should be elicited from the Veteran, and the examiner should conduct any tests and studies deemed necessary. All findings should be reported in detail. The examiner should address the Veteran’s contentions regarding his increased nighttime and daytime voiding, use of pads, and bowel dysfunction as related to his residuals of prostate cancer. The examiner should also discuss the effect of his residuals of prostate cancer on his occupational functioning and activities of daily living. 6. Thereafter, schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate examiner to determine the current severity of his erectile dysfunction. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by, the examiner. A complete history should be elicited from the Veteran, and the examiner should conduct any tests and studies deemed necessary. All findings should be reported in detail. The examiner should address the Veteran’s contentions regarding his penis deformity and loss of erectile power. (Continued on the next page)   The examiners should assume that the lay statements of record are credible for the limited purpose of providing the requested medical opinions. 7. Thereafter, readjudicate the claims and the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.