Citation Nr: 20056765
Decision Date: 08/27/20	Archive Date: 08/27/20

DOCKET NO. 20-24 956
DATE: August 27, 2020

ISSUES

1. Entitlement to an initial disability evaluation greater than 20 percent for prostate cancer status post radical prostatectomy.

2. Entitlement to an initial compensable disability evaluation for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, prior to February 27, 2020.

3. Entitlement to an initial disability evaluation greater than 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, from February 27, 2020.

4. Entitlement to an effective date prior to December 18, 2015 for service connection for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy.

5. Entitlement to an effective date prior to December 18, 2015 for service connection for prostate cancer status post radical prostatectomy.

6. Entitlement to service connection for a skin disability, variously claimed as chloracne or other acneform disease, to include as due to herbicide exposure.

7. Entitlement to service connection for skin lesions, claimed as keloids, to include as due to herbicide exposure.

8. Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to herbicide exposure.

9. Entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to herbicide exposure.

10. Entitlement to service connection for a disability manifested by pain in the long bones, to include as due to herbicide exposure.

11. Entitlement to service connection for a disability manifested by tingling in the feet, to include as due to herbicide exposure.

ORDER

Entitlement to an initial disability evaluation greater than 20 percent for prostate cancer status post radical prostatectomy is denied.

Entitlement to an initial compensable disability evaluation for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, prior to February 27, 2020 is denied.

Entitlement to an initial disability evaluation greater than 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, from February 27, 2020 is denied.

Entitlement to an effective date prior to December 18, 2015 for service connection for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy is denied.

Entitlement to an effective date prior to December 18, 2015 for service connection for prostate cancer status post radical prostatectomy is denied.

REMANDED

Entitlement to service connection for a skin disability, variously claimed as chloracne or other acneform disease, to include as due to herbicide exposure is remanded.

Entitlement to service connection for skin lesions, claimed as keloids, to include as due to herbicide exposure is remanded.

Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to herbicide exposure is remanded.

Entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to herbicide exposure is remanded.

Entitlement to service connection for a disability manifested by pain in the long bones, to include as due to herbicide exposure is remanded.

Entitlement to service connection for a disability manifested by tingling in the feet, to include as due to herbicide exposure is remanded.

FINDINGS OF FACT

1. Prostate cancer status post radical prostatectomy is manifested by awakening to void three to four times per night, daytime voiding intervals between one and two hours, and inactive prostate disease; with no obstructed voiding symptoms, renal dysfunction symptoms, or edema. 

2. Prior to February 27, 2020, painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, are manifested by scars of the anterior trunk on the left lateral lower abdomen measuring 2 centimeters (cm) by 1 cm, left medial lower abdomen 2.5 cm by 1 cm, umbilicus 1 by 1.5 cm, inferior to umbilicus 3.5 by 1 cm, right medial lower abdomen 2 by 1 cm, and right lateral lower abdomen 1.5 by 0.5 cm; with an approximate total area of 12.25 square centimeters; that are stable, not painful, non-tender, and have no underlying tissue damage.

3. From February 27, 2020, painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, are manifested by two painful scars, with one measuring 2 cm by 1 cm and a second scar measuring 1 cm by 1 centimeter; that are stable, non-tender, and have no underlying tissue damage; with a total area less than 929 square centimeters.

4. On December 18, 2015, VA received the Veteran’s VA Form 21-0966, Intent to File a Claim for Compensation.

5. On October 30, 2016, VA received the Veteran’s VA 21-526EZ Application for Disability Compensation as part of his fully developed service connection claims, including for “cancer - prostate.”  

6. Entitlement to service connection for painful scars of the abdomen and prostate cancer status post radical prostatectomy arose on December 18, 2015, the date of receipt of the Veteran’s Intent to File a Claim.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 20 percent for prostate cancer status post radical prostatectomy have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§  3.102, 3.159, 3.3.21, 4.1, 4.14, 4.3, 4.6, 4.7, 4.115a, Diagnostic Code 7528 (2018).

2. The criteria for an initial compensable disability rating for painful scars of the abdomen, prior to February 27, 2020 have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§  3.102, 3.159, 3.3.21, 4.1, 4.14, 4.3, 4.31, 4.6, 4.7, 4.118, Diagnostic Code 7804 (2018).

3. The criteria for an initial disability rating in excess of 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, from February 27, 2020 have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.3.21, 4.1, 4.14, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7804 (2018).

4. There is no legal entitlement to an effective date prior to December 18, 2015 for the grant of service connection for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy.  38 U.S.C. §§ 5101, 5110, 7105 (2012); 38 C.F.R. § 3.1, 3.400 (2018).

5. There is no legal entitlement to an effective date prior to December 18, 2015 for the grant of service connection for prostate cancer status post radical prostatectomy.  38 U.S.C. §§ 5101, 5110, 7105 (2012); 38 C.F.R. § 3.1, 3.400 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had a period of active duty for training (ACDUTRA) from January 1967 to May 1967, and served active duty from May 1968 to August 1969.  Service in the Republic of Vietnam is indicated by the record.  Agent orange exposure is conceded.  This is discussed further below.

This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).   

As a threshold issue, a review of the procedural history for these and other claims in the claims file is instructive.  First, the Board observes that a June 2017 rating decision granted entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities.  It also denied service connection for post-traumatic stress disorder (PTSD), claimed as nightmares. 

Later, a March 2020 rating decision effectuated partial grants stemming from a contemporaneous Statement of the Case (SOC).  It granted a 20 percent evaluation for prostate cancer status post radical prostatectomy.  The rating decision also granted an increased, 10 percent disability rating for painful scars of the abdomen, effective February 27, 2020.  The rating decision separately granted service connection for scars of the abdomen under a distinct Diagnostic Code (DC), 7802.  DC 7802 is for a scar at a location other than the head, face, or neck that is superficial, with no underlying tissue damage.  The increased rating claim on appeal before the Board for painful scars is under DC 7804 for unstable or painful scars.  As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, the claims remain in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  We adjudicate these appeals below.

Next, on May 22, 2020, VA received the Veteran’s VA 21-526EZ Application for Disability Compensation and Related Compensation Benefits for the issues of entitlement to a total disability rating based on individual unemployability (TDIU), entitlement to service connection for depression as secondary to prostate cancer, peripheral neuropathy of the bilateral upper extremities, and loss of use of feet.  These distinct claims are still before the RO.  In July 2020, VA also received a VA 21-526EZ for service connection for hypertension, chronic kidney as secondary to hypertension, glaucoma as secondary to hypertension, hypertensive heart disease, and coronary artery disease.  Later in July 2020, VA also received a VA 21-526EZ for special monthly compensation for aid and attendance for his spouse.  These claims are all still before the RO.

Also in July 2020, VA received a memorandum from the Social Security Administration (SSA) National Records Center.  It shows that there are no medical records in existence in its possession for the Veteran.    

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018).

First, the Veteran submitted argument and evidence in a January 2020 Brief in connection with a Decision Review Officer (DRO) hearing. 

Next, in late July and early August 2020, the Veteran through counsel submitted a packet of treatment records and argument on a VA 21-4138 Statement in Support of Claim, construed by the Board as a Brief.  Along with these documents, a July 2020 Decision Review Request: Higher Level Review form is of record.  This is of no moment as the appeals are already before the Board stemming from the May 2020 VA Form 9 in the legacy system.  The Board observes that the Veteran did not check the box indicating an opt-in to the Appeals Modernization Act (AMA) structure.  There is no prejudice to the Veteran in this regard as the claim is already properly on appeal before the Board.  Turning to the content of the submissions, the August 6, 2020 Brief dated that same day on attorney letterhead is of record.  Importantly, the Veteran identified, “Missing medical records from the Eisenhower VA Center and from my Claim file” (emphasis in original.)  The Veteran describes, “These records could be crucial to my claims for keloids secondary to chloracne (or other dioxin-induced skin conditions) and peripheral neuropathy).  The Veteran goes on to write, “I contested the VA’s claim that the records are missing and its use of the missing records as evidence against my claims. My detailed statement is found on pages 9 and 10 of the statement I gave at the Decision Review hearing on January 27, 2020.  I show that VA documents indicate that the records were pulled from records centers and submitted to requesting VA subagencies as early as February and March 1970 and as recently as January 2017.” 

Much of the additional discussion and medical evidence submitted in July and August 2020 is related to claims not currently before the Board, but still before the RO.  For example, there are contentions related to service connection for a cardiac condition and hypertension.  We address the Veteran’s arguments regarding the increased rating and effective date claims on appeal before the Board below.  

The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Increased Rating

Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the abdominal scar disability ratings have been previously staged.  As discussed below, the same stages are still warranted.  A uniform evaluation is still warranted for prostate cancer status post radical prostatectomy.  

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

1. Entitlement to an initial disability evaluation greater than 20 percent for prostate cancer status post radical prostatectomy

The Board incorporates its discussion from the sections above by reference.

By way of background, prostate cancer status post radical prostatectomy is assigned a 20 percent rating under Diagnostic Code (DC) 7528.  This is for malignant neoplasms of the genitourinary system, which derives from the ratings of the genitourinary system – diagnoses.  See 38 C.F.R. § 4.115a, 4.115b; Diagnostic Code 7528 (2018). 

Under Diagnostic Code 7528, a rating of 100 percent is warranted for a malignant neoplasm.  Id.  Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note.  Any change in evaluation based upon that or any subsequent examination is then subject to the provisions governing a reduction in disability rating.  Id.  If there is no local reoccurrence or metastasis, the disability should be rated on residuals as voiding or renal dysfunction.  Id.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e).

Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence which requires the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent disability rating.  For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, requiring the wearing of absorbent materials which must be changed 2 to 4 times per day, a 40 percent rating is warranted.  The maximum rating of 60 percent is warranted when there is urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. If rated based on urinary frequency, a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating.  A daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating.  A daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a maximum 40 percent rating.  38 C.F.R. § 4.115a. 

If rated based on obstructed voiding, marked obstructive symptomatology with any one or combination of: post-void residuals greater than 150 cc, a markedly diminished peak flow rate of less than 10 cc/sec, recurrent urinary tract infections secondary to obstruction, or stricture disease requiring periodic dilation every two to three months, warrants a 10 percent rating.  Urinary retention requiring intermittent or continuous catheterization warrants a maximum 30 percent rating. 38 C.F.R. § 4.115a. 

A rating in excess of 60 percent may not be awarded for prostate cancer residuals unless there is evidence of significant renal dysfunction. 38 C.F.R. § 4.115a.  

By way of evidentiary history, private treatment records from Northwest Medical Center – Tucson were submitted on October 30, 2016.  They show a history of a robotic radical prostatectomy in December 2009.  The Veteran’s follow up appointment at Urological Associates of Southern Arizona, P.C. dated September 10, 2010, showed “voids well” and no inconvenience.  However, the chronic problems list shows, “Stress incontinence male.  Status: No evidence of disease.  Additional information: down to one pad daily by one week after foley removal, no pads 5 mos after surgery.”  A related December 2010 private treatment record shows that albumin was negative.  For stress incontinence, it shows no evidence of the disease.  The comment shows, “Excellent function.”  Subsequent VA and private treatment records are substantially the same, and do not show evidence of regular pad use.  

Next, the Veteran was afforded an April 2017 VA Prostate Cancer examination.  The VA examiner elicited a lay history from the Veteran.  It shows in part:

He reports normal erectile function prior to surgery.

He reports normal urinary function prior to surgery.

He reports onset of ED after surgery. He was given Cialis, with no relief .

Penile pump was suggested, but he has not tried it.

Reports he has no sexual relations due to ED.

He wore pads for 4 months after surgery.

No longer wears pads.

Upon clinical examination, the VA examiner did not identify a voiding dysfunction.  There was no history of recurrent symptomatic urinary tract or kidney infections.  

Years later, the Veteran filed a May 2018 Notice of Disagreement (NOD).  The Board observes that the rating decision on appeal is dated May 3, 2017 and the NOD was received on May 7, 2018.  Nevertheless, as additional evidence continued to be received, the claim remained under development.  We will not disturb the RO’s favorable interpretation of this as a timely NOD.  Turning to the merits of the appeals, the Veteran contends that he has reported urinary dysfunction since undergoing prostate surgery in December 2009.  He contends that he has a diagnosis of a voiding dysfunction (nocturia.)  He voids three to four times per night and every two to three hours during daytime activity.  He requests the maximum rating allowed under the law.  

Later, the Veteran was afforded another May 2019 VA prostate examination.  The VA examiner indicated that the Veteran has a voiding dysfunction.  However, the VA examiner indicated that the voiding dysfunction does not cause urine leakage, or require the use of an appliance.  It causes increased urine frequency with daytime voiding intervals between one and two hours, and nighttime wakening to void three to four times.  There were no signs or symptoms of obstructed voiding.  The Veteran did not have recurrent sym atomic urinary tract or kidney infections.  The VA examiner remarked, “For the VA established diagnosis of prostate cancer status post radical prostatectomy there is no change in the diagnosis.  At this time the claimant’s condition is in remission.” 

Next, at the January 2020 informal Decision Review Officer (DRO) hearing.  The summary shows in relevant part, “Veteran maintains that he does have and has had voiding dysfunction since his prostate surgery and indicated this is documented in his statements/medical records.  Stated his scars from the prostate surgery are unstable and are painful at time, especially when his belt rubs on them.” 

Also in January 2020, the Veteran submitted a January 2020 Brief, related to the DRO hearing.  On page 5 of the document, he concludes, “As stated above, it is clear that I developed voiding dysfunction after surgery.  Medical researchers cited immediately bellow are not sure why some patients experience this post surgical result.  I list several research articles that describe their research findings immediately below.  Careful review of my remarks and of the research I cite should convince the DVA that voiding dysfunction can be, and in my case is, a secondary effect of prostate cancer and the attendant surgical treatment.”  On previous pages, he also generally challenges the April 2017 VA examination results and contends that they are “incomplete, and/or in error.” 

The May 2020 VA Form 9 contains no specific evidence other than his request for increased ratings and earlier effective dates.  Counsel fails to identify any evidence of the relevant diagnostic criteria suggesting that the disability ratings are best summarized by higher evaluations.  

Next, included with the batch of medical evidence and argument from July and August 2020, the Veteran submitted a VA 21-4138 Statement in Support of Claim (Brief).  This Brief contains no specific argument identifying why an increased rating is warranted.  It still does not point to evidence that shows increased impairment under the relevant diagnostic criteria for each disability.  

The Veteran contends that he is entitled to an initial disability evaluation greater than 20 percent for prostate cancer status post radical prostatectomy.

By way of background, prostate cancer status post radical prostatectomy is currently assigned a 20 percent rating as a malignant neoplasm of the genitourinary system as a voiding dysfunction.  The current 20 percent disability rating contemplates awakening to void three to four times per night, daytime voiding interval between one and two hours, and inactive prostate disease.  In order to have a higher evaluation, there must be symptoms such as obstructed voiding symptoms including urinary retention requiring intermittent or continuous catheterization; or, renal dysfunction symptoms including: albumin constant or recurring with hyaline and granular casts or red blood cells; or, hypertension at least 10 percent disabling under diagnostic code 7101; or slight edema; or transient edema.  In addition, a higher disability evaluation for urinary frequency symptoms would be warranted if there is evidence of awakening to avoid five or more times per night or daytime voiding intervals less than one hour; or voiding dysfunction symptoms including the wearing of absorbent materials which must be changed two to four times per day.  This is not the case here, as the most probative evidence does not show such severe impairment, frequent voiding, or necessary measures.  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159 (a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (a)(2).  The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and reports of the frequency of urinating.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997). 

Here, the most probative evidence is the findings of the VA examinations, presenting a clear picture of the Veteran’s prostate cancer disability status post radical prostatectomy.  First, the April 2017 VA examiner found in relevant part that the Veteran only wore pads for four months after surgery several years earlier.  He no longer wears pads.  Second, the Veteran was afforded a May 2019 VA examination.  The VA examiner reviewed the entire claims file, elicited a lay history from the Veteran, and performed a complete physical examination.  The VA examiner identified a voiding dysfunction.  However, the VA examiner indicated that the voiding dysfunction does not cause urine leakage, or require the use of an appliance.  It does cause increased urine frequency with daytime voiding intervals between one and two hours, and nighttime wakening to void three to four times.  There were no signs or symptoms of obstructed voiding.  The Veteran did not have recurrent symptomatic urinary tract or kidney infections.  The VA examiner remarked, “For the VA established diagnosis of prostate cancer status post radical prostatectomy there is no change in the diagnosis. At this time the claimant’s condition is in remission.”  We assign the most probative weight to the clinical findings of the VA examiner.

We have also considered the Veteran’s lay evidence intertwined with the argument, including as reported to the VA examiners.  We reiterate that the various briefs and submissions do not definitively identify the medical evidence suggesting that a higher rating is warranted under the applicable diagnostic criteria.  We note that the Veteran’s initial argument largely concerned the etiology of his voiding dysfunction, rather than the initial rating itself.  With regard to any challenges to the findings of the April 2017 VA examiner, the Vetearn was later afforded a May 2019 VA examination.  Those results do not suggest that an initial rating greater than 20 percent is warranted.  The Board is mindful that the private treatment records and April 2017 VA examination showed no use of pads or voiding dysfunction.  Still, drawing all inferences in favor of the Veteran, VA will not disturb the current rating 20 percent at this time, and has rated the Veteran based upon the examination showing the most severe impairment.  38 C.F.R. §§ 4.3, 4.6, 4.7.  

In short, the most probative evidence in the VA examinations establishes that the current 20 percent rating most closely approximates the Veteran’s disability picture for prostate cancer status post radical prostatectomy.  This is based upon residuals of prostate surgery resulting in awakening to void three to four times per night, daytime voiding interval between one and two hours, and inactive disease.  There is no evidence of obstructed voiding symptoms including urinary retention requiring intermittent or continuous catheterization, renal dysfunction symptoms, or edema.  The urinary frequency symptoms are not so severe as to require awakening to avoid five or more times per night or daytime voiding intervals less than one hour; or voiding dysfunction symptoms including the wearing of absorbent materials which must be changed two to four times per day.  We have considered the VA examinations, lay statements, and treatment records, drawing all inferences in favor of the Veteran.  A higher rating is still precluded under the objective criteria in the applicable diagnostic codes. We specifically considered the private treatment records and lay reports of prostate surgery.  The benefit of the doubt rule has been favorably applied in the 20 percent partial grant by the RO.  There is no doubt to resolve.  Therefore, an initial rating in excess of 20 percent for prostate cancer status post radical prostatectomy is not warranted. 

2. Entitlement to an initial compensable disability evaluation for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, prior to February 27, 2020

The Board incorporates its discussion from the sections above by reference.

By way of background, painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy are assigned an initial noncompensable evaluation Diagnostic Code (DC) 7804 for scars, unstable or painful, which derives from the Schedule of ratings - skin. See 38 C.F.R. § 4.118; Diagnostic Code 7804 (2018).  The Board observes that this disability was previously characterized as scars, other under DC 7805 prior to February 27, 2020, when it was rated as abdomen scars.  

By way of other possible rating criteria, under Diagnostic Code 7802, a scar at a location other than the head, face, or neck that is superficial, with no underlying tissue damage, would have to have an area exceeding 144 square inches (929 square centimeters) to warrant a compensable, 10 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7802.  A superficial scar is one that is not associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1).

Pursuant to Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating.  Diagnostic Code 7804, Note (1) defines an unstable scar as “one where, for any reason, there is frequent loss of covering of skin over the scar.”  Diagnostic Code 7804, Note (2) allows for an extra 10 percent rating for a single scar that is both unstable and painful.  Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable.  See 38 C.F.R. § 4.118, Diagnostic Code 7804, (Note 3). 

Pursuant to Diagnostic Code 7805, disabling effects not considered in a rating provided under Diagnostic Codes 7800, 7801, 7802, and 7804 are to be rated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The Veteran contends that he is entitled to initial compensable disability evaluation for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, prior to February 27, 2020.  

By way of background, the Veteran was afforded an April 2017 VA skin diseases examination.  The VA examiner reviewed the entire claims file, elicited a lay history from the Veteran, and performed a complete physical examination.  The VA examiner documented the Veteran’s history:

Vet states he was not diagnosed with chloracne nor has he ever been  treated for chloracne. No current symptoms. However, he does report that he had a rash on his chest and groin which started when he was in Vietnam in April of 1969.  The rash continued for several years and was treated with over the counter medication.  The rashes ultimately resolved with residual scarring on his chest and groin. He was seen by a Dermatologist in the 1970’s.  He states he had keloid removed from his groin, which has been removed on several occasions.  Additionally, he reports multiple keloid scars on his chest, which were not present prior to going to Vietnam.

Next, the VA examiner identified multiple keloid scars.  Of note, there were four scars on the abdomen of 2 cm by 1 cm in size.  Additional scars were on the groin right side, back of leg upper, and chest.  There was no evidence of chloracne on examination, with zero percent of the exposed area covered.  

Also in April 2017, VA received a batch of private treatment records.  These include records from Dr. M. H.  Ongoing private treatment records beginning in the early 2000s from Dr. M. H. at Associated Dermatologists, P.C. show impressiones of keloid mid to upper chest, early (illegible) right lower extremity.  The Veteran was prescribed Protopic ointment.  The issue remains determining the severity of impairment under the governing rating criteria.

Also included with the private treatment records in April 17, 2017 is a medical opinion dated March 3, 2016 from Dr. J. H., Jr. M.D.  It shows that the Veteran presented for evaluation of skin lesions located “on the body throughout.  The lesions are asymptomatic.  His history is significant for no previous skin cancer.  Additionally, he also presents for evaluation for suspicious growths.”  The impressions included, “Keloid. Status: stable.”  

Next, in May 2019, the Veteran was afforded a VA scars/disfigurement examination.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner identified keloid scars status post prostatectomy.  The Veteran did not have painful scars of the trunk or extremities.  The VA examiner identified scars on the left lower abdomen, the left medial lower abdomen, the umbilicus, inferior to umbilicus, right medial lower abdomen, and right lateral lower abdomen.  The scars of the anterior trunk were left lateral lower abdomen measuring 2 cm by 1cm; left medial lower abdomen 2.5 cm by 1 cm; umbilicus 1 by 1.5 cm; inferior to umbilicus 3.5 by 1 cm; right medial lower abdomen 2 by 1 cm; and right lateral lower abdomen 1.5 by 0.5 cm.  The approximate total area was 12.25 square centimeters, without underlying tissue damage.  None of the scars were painful or unstable on the head, face, or neck.  

Later, at the DRO informal conference on January 27, 2020, the Veteran indicated that the scars from the prostate surgery are unstable and are painful at times, especially when his belt rubs on them.

The related January 2020 Brief contains additional argument beginning on page 6 under “Issue 2. Abdomen Scars.”  The Veteran contends that he has four keloids as secondary to the prostatectomy he had on December 15, 2009.  The Veteran alleges that the April 2017 VA examiner was “reluctant” to consider keloid scars as a component of his claim.  The Veteran identifies evidence of post-surgical scars and requests consideration of these scars.  He reports that keloid scars spread beyond the boundaries of the injury.  Additional lay argument concerns the separate claim for service connection for “chloracne or other acneform disease” and “skin lesions/keloids,” addressed separately below.

Additional VA and private treatment records are substantially the same.

The Veteran contends that he is entitled to an initial compensable evaluation for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, prior to February 27, 2020.  38 C.F.R. § 4.118, DC 7804 (2018).  

The Veteran is competent to report a painful scars on the abdomen following prostate surgery.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  He is not competent to opine on the stability of scars or make other complex medical determinations.

As a threshold consideration, the Board is mindful that service connection was already separately granted for scars of the abdomen associated with prostate cancer surgery under DC 7802, with a noncompensable rating.  This current appeal is under DC 7804.  Prior to February 27, 2020, was previously rated under DC 7805, though the Veteran also now has a separate claim for service connection for any skin lesions or keloids, to include as due to herbicide exposure under DC 7805.  This is addressed in the Remand section below.  The Board is mindful that the evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  The Veteran is being afforded every possible consideration and diagnostic code to consider all of his claimed impairment.  

Turning to the merits of this appeal painful scars of the abdomen currently rated under DC 7804, the most probative evidence is the objective clinical findings of the April 2017 and May 2019 VA examiners.  The VA examinations present a consistent picture of the Veteran’s abdominal scar disability during this stage.  

First, in considering an initial compensable evaluation for this stage, the current rating contemplates scars of the anterior trunk on the left lateral lower abdomen measuring 2 cm by 1cm; left medial lower abdomen 2.5 cm by 1 cm; umbilicus 1 by 1.5 cm; inferior to umbilicus 3.5 by 1 cm; right medial lower abdomen 2 by 1 cm; and right lateral lower abdomen 1.5 by 0.5 cm.  The approximate total area was 12.25 square centimeters.  They were stable, not painful, and there was no underlying tissue damage.  A higher evaluation is not warranted for painful scars of the abdomen, previously rated as abdomen scars, that are unstable or painful unless the evidence shows one or two scars that are unstable or painful.  This is not the case here, as the objective evidence in the VA examinations does not establish painful or unstable scars.  

The weight of the competent and probative evidence establishes that there are multiple scars from prostate surgery.  The April 2017 VA examiner four scars on the abdomen of 2 cm by 1 cm in size.  There were unrelated additional scars.  Second, the May 2019 VA examination results are relatively consistent, including scars on the left lateral lower abdomen measuring 2 cm by 1cm; left medial lower abdomen 2.5 cm by 1 cm; right medial lower abdomen 2 by 1 cm; and right lateral lower abdomen 1.5 by 0.5 cm.  Indeed, these clinical findings are generally consistent with the Veteran’s own lay history of prostate surgery completed by a professional in a clinical setting.  Once again, any evidence of non-abdominal scars is related to other claims.  The Veteran’s disability picture for the stable, non-painful, surgical scars fit squarely within the rating criteria for a noncompensable rating under DC 7804.  

We have also considered the Veteran’s lay submissions, private treatment records, and the argument submitted by his attorney.  He has been afforded two complete VA examinations during this stage.  Any lay assertions regarding instability, pain, or that a compensable evaluation is generally warranted for pain, are outweighed by the objective clinical findings of the VA examiners.  In other words, while the Veteran is competent to report impairment due to pain, the VA examinations are the most probative evidence.  The weight of the competent and probative evidence establishes surgical abdominal scars, without pain, instability, burns, or underlying tissue damage.

Furthermore, solely on the basis of considering these surgical abdominal scars, the evidence does not meet the criteria for separate rating under DC 7805 because the rating criteria already contemplate the set of abdominal scars.  The Veteran has a separately pending appeal under DC 7805 for service connection for other skin pathology.  No VA examiner has indicated that the abdominal scars were poorly nourished with repeated ulcerations or unstable.  The area or areas of the scars is not of sufficient size (929 square centimeters) to warrant a compensable evaluation as a burn scar or scar due to other causes.  38 C.F.R. § 4.118, Diagnostic Code 7802.  The May 2019 VA examiner did not identify underlying tissue damage.  Loss of function of the body part affected has not been demonstrated.  No other diagnostic codes are applicable.  Thus, the most probative objective medical evidence is against the grant of an initial compensable evaluation under another diagnostic code.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.118, 4.21; DCs 7802, 7805 (2018).  

In reaching this conclusion, the Board is sympathetic to the Veteran’s circumstances and hardship that he has endured.  Nevertheless, the most probative evidence is the VA examinations, including the objective clinical findings of the May 2019 VA examiner.  In considering these findings, VA is bound by the specific rating criteria for scars.  We note that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  There is no doubt to resolve.  Therefore, we find that an initial compensable rating for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, prior to February 27, 2020, is not warranted.

(Continued on the next page.) 

 

3. Entitlement to an initial disability evaluation greater than 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, from February 27, 2020

The Board incorporates its discussion from the sections above by reference.

By way of background, painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy are assigned a 10 percent disability rating under DC 7804 for scars, unstable or painful.  See 38 C.F.R. § 4.118; Diagnostic Code 7804 (2018).  This is effective February 27, 2020, and this staged rating is still warranted.  This is the date on which there was evidence of a change.  The Veteran contends that an increased initial disability rating is warranted.

Briefly, pursuant to Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating.  

By way of background, the Veteran was afforded a February 27, 2020 VA Scars/ Disfigurement Examination Disability Benefits Questionnaire (DBQ).  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner identified only keloided abdomen scars – surgical.  The VA examiner indicated that the Veteran has scars on the trunk or extremities.  He does not have any scars on the head, face, or neck.  Second, the Veteran provided a lay history:

The veteran states that in 2010 abdominal surgical scars from a 2009 prostatectomy became keloided and those scars about his belt line were painful. This has been treated with topical betamethasone. He also states that an unrelated resolved Chloracne acne about the chest and groin keloided in 1968 and were later treated in the 1970s with topical cortisone compounds. These acne scars will all have an unusual consistent horizontal linear pattern.  Groin lesions have been excised multiple times.

Upon clinical examination, the VA examiner notably identified two painful keloided scars.  The pain was by way of a burning sensation.  None of the scars of the trunk or extremities were due to burns.  There were 6 scars on the chest, and 6 of the abdomen.  The two painful scars measured 2 centimeters by 1 (#7) centimeters and 1 centimeters by 1 centimeters (#12).  There were two scars on the groin, on the left and right.  The VA examiner indicated that the posterior trunk was not affected.  The scars were not found to be unstable.  The total area of scarring of the anterior trunk was 61 square centimeters.  There was no limitation of function. 

Next, in the August 2020 VA 21-4138 Statement in Support of Claim construed as a Brief, the Veteran generally asserts that the keloids are painful.  He avers, “There is, of course, no ‘objective medical measure’ of pain or inflammation of scars.  All such evaluations are subjective.” 

Ongoing VA and private treatment records are substantially the same.  

The Veteran contends that he is entitled to an initial disability rating greater than 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy from February 27, 2020.  38 C.F.R. § 4.118, DC 7804 (2018).  As a threshold consideration, the Board is once again reminded mindful that service connection was already separately granted for scars of the abdomen associated with prostate cancer surgery under DC 7802, with a noncompensable rating.  This current appeal is under DC 7804.  The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  

The Veteran is competent to report a painful scars on the abdomen following prostate surgery, as reported to the VA examiner and treatment providers.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Likewise, he is competent identify a scar’s location to the extent that it is observable to the naked eye.  He is also competent to report when keloided scars were diagnosed, their size, and location, as identified by treatment providers.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Turning to the merits of the increased rating claim, the most probative evidence is the objective clinical findings of the February 27, 2020 VA examining physician.  The VA examination presents a concrete picture of the severity of the Veteran’s abdominal scar disability.  This is the date upon which there was clinical evidence of a change.  

First, in addressing an initial rating in excess of 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy under DC 7804, the current 10 percent rating contemplates two painful abdominal scars, with one measuring two centimeters by centimeter and a second scar measuring one centimeter by one centimeter.  They are stable, non-tender, and with no underlying tissue damage; and with a total area less than 929 square centimeters.  A higher evaluation percent is not warranted for scars that are unstable or painful unless the evidence shows three or four painful or unstable scars; or one or two painful or unstable scars with at least one scar being both painful and unstable.  This is not the case here, as the objective evidence in the February 27, 2020 VA examination establishes only two painful scars measuring 2 cm by 1 cm, and 1 cm by 1 cm, with a total area of the anterior trunk of 61 square centimeters.  The scars were stable and there was no underlying tissue damage.

Indeed, this current evaluation is consistent with the Veteran’s own lay history of prostate surgery successfully conducted in a clinical setting by a medical professional, as opposed to, for example, a shrapnel wound incurred in combat.  The surgery was in December 2009.  The Veteran has not identified any other evidence of additional painful scars, or evidence of unstable scars.  The current two painful, stable scars fit squarely within the rating criteria for a ten percent rating under DC 7804.  

In short, the current ten percent rating for painful scars of the abdomen most closely approximates the Veteran’s disability picture during this stage, from February 27, 2020.  The 10 percent rating based upon the February 2020 VA examination already represents a partial grant of the benefit sought.  In reaching this decision, we have considered all lay and medical evidence.  The current compensable evaluation contemplates the Veteran’s lay reports of pain, including from his belt rubbing the affected area.  We have also considered all potentially applicable diagnostic codes, but none would result in an increased rating.  No VA or private physician has indicated that the scar was poorly nourished with repeated ulcerations or unstable.  Loss of function of the body part affected has not been demonstrated.  No other diagnostic codes would result in a higher rating.  Therefore, an initial disability evaluation greater than 10 percent for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy from February 27, 2020 is not warranted.  38 C.F.R. §§ 4.118, 4.21; DC 7804 (2018).

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Effective Date

4. Entitlement to an effective date prior to December 18, 2015 for service connection for painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy

5. Entitlement to an effective date prior to December 18, 2015 for service connection for prostate cancer status post radical prostatectomy

The Board incorporates its discussion from the sections above by reference.

Given the procedural nature of the issue on appeal, a review of the relevant governing statutes is instructive.

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110 (a).

Subsection (b) provides:

(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release. 

(2) (A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 

(3) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C. § 5110 (b).

Claim means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.  38 C.F.R. § 3.1 (p).

In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the “earliest date as of which,” within the one-year prior to the claim, the increase in disability was ascertainable.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

The Board observes that the VA adjudication system is a non-adversarial, pro-claimant system wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF. v. Derwinski, 1 Vet. App. 324 (1991).  The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Next, a review of the procedural history is informative.

First, VA received the Veteran’s original VA 21-0966 Intent to File a claim for service connection on December 18, 2015.

Later, on October 30, 2016, VA received the Veteran’s VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits.  This was his fully developed claim.  The Form shows in part claims for service connection for “cancer – prostate.”  Of note, the May 2017 rating decision shows the issues of prostate cancer status post radical prostatectomy and painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy.  

The private treatment records from Northwest Medical Center – Tucson were also submitted on October 30, 2016.  They show the 2009 prostate surgery.

The Veteran through his attorney filed a May 2018 Notice of Disagreement (NOD).  The effective date box is indicated for prostate cancer status post radical prostatectomy and abdomen scars.  In attached argument that follows, the Veteran explains his theories of entitlement.  He asserts that he has reported urinary dysfunction since undergoing prostate surgery in December 2009.  He does not say who he has reported this to.  He does not suggest a specific effective date.  Related to abdominal scars, the relief requested also does not list an effective date that he alleges is the correct date.  The Veteran requests that a maximum impairment rating be assigned for these disabilities, which we have already addressed. 

Later, in the March 2020 Statement of the Case (SOC), the Veteran and his attorney were once again informed of the critical evidentiary requirements for an earlier effective date, including the date VA received the Veteran’s Intent to File.

The August 2020 Brief on the VA 21-4138 Statement in Support of Claim does not concretely identify the basis for the earlier effective date appeal.  Put differently, it does not identify evidence of a claim or make a specific argument that an earlier claim exists.  It contains argument related to the increased rating claims that we have already discussed, and argument related to other issues.  The Veteran describes abdominal keloids.  The Veteran writes that he “gave notice in December 2015 that I would file a claim.”  He does not submit the date of an earlier claim for service connection for prostate cancer or abdominal scars.  Buried in his contentions is the assertion that, “the abdominal keloids were painful prior to the cited effective date.”  He also emphasizes that there is no “objective medical measure” of pain.  In all of the argument, the Veteran and his attorney do not identify a date of claim prior to that which has already been considered.  

The Veteran contends that he is entitled to an effective date prior to December 18, 2015 for the grant of service connection for prostate cancer status post radical prostatectomy and painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy.  As described below, we find that this is not warranted based upon the governing statutory law.

As a threshold matter, we reiterate that there is no evidence in question for our review which the Veteran contends to be his original earlier claim(s) for service connection.  In the August 2020 Brief, the Veteran through his attorney implicitly concedes that although he had been seeking treatment from Dr. H. for several years, he did not file a related claim until December 2015.  Furthermore, a claim was not raised by the record prior to December 18, 2015.

The most probative evidence is the procedural documents in the claims file.  The RO assigned an effective date of December 18, 2015.  This is the date the RO found that the Veteran first filed his VA Form 21-0966 Intent to File a Claim for Compensation. 

As referenced above, the relevant law essentially shows that the effective date of the claim shall not be earlier than the date of receipt of application therefor.  See 38 U.S.C. § 5110 (a).  Indeed, the Veteran has identified prostate surgery from 2009.  Nevertheless, VA is bound by the governing regulation, notably using the unambiguous word shall.  Unfortunately, however, the Veteran’s intent to file for service connection was not received until December 18, 2015, and this is therefore the earliest date which VA may consider.  See U.S.C. § 5110 (a).  There are no other documents that could be construed as a claim for service connection prior to this date.  Medical evidence showing prostate surgery were submitted years later.

Second, the Board highlights that the RO has already liberally construed the date of application to be December 18, 2015 as opposed to October 30, 2016, the date of receipt of the Veteran’s fully developed claim for service connection described above. 

Under these facts, the earliest effective date the Veteran is entitled to service connection for prostate cancer status post radical prostatectomy and painful scars of the abdomen is the date VA received the Veteran’s the Intent to File a Claim, December 18, 2015.  The Board acknowledges the Veteran’s repeated, sincere belief that he is entitled to an earlier effective date.  We acknowledge his later-reported impairment from prior dates.  It is not clear from his remote lay statements this was reported to VA, and any medical notations did not rise to the level of a claim for service connection.  We considered his contentions, including his assertion in the May 2018 NOD that abdominal scars from prostate surgery are keloids.  However, given the facts of the case, the law governing the assigned effective date is clear: date of receipt of claim or date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  There is no doubt to resolve.  Consequently, an effective date prior to December 18, 2015, for the grant of service connection for prostate cancer status post radical prostatectomy and painful scars of the abdomen, previously rated as abdomen scars, associated with prostate cancer status post radical prostatectomy, is not warranted.

Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (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).

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

In light of the Veteran and his attorney’s contentions, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  A review of the governing law is instructive.

To establish service connection a Veteran must generally 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.”  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.”  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303 (b).  

We note that pain as organic disease of the nervous system is a chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection.  See 38 C.F.R. §§ 3.303, 3.307, 3.309.  Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology.  Continuity may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as “chronic.”  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a).  Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

A disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and (B) each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service.  38 U.S.C. § 1116 (a)(1).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied.  AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). (emphasis added.) 38 C.F.R. § 3.309 (e). 

The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307 (a)(6)(ii).

VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 68 Fed. Reg. 27630-27641 (2003).  

Exposure to herbicide agents has been conceded.  The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). 

In the instant case, the Veteran’s Service Personnel Records (SPRs) show that he served in-country in the Republic of Vietnam.  He was later afforded a November 3, 2015 VA Agent Orange Registrant Examination at the Southern Arizona VA Health Care System (HCS), labeled as CAPRI.  Herbicide exposure is conceded.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.  Id.  Further, a negative inference may be drawn from the absence of complaints for an extended period.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

1. Entitlement to service connection for a skin disability, variously claimed as chloracne or other acneform disease, to include as due to herbicide exposure is remanded.

2. Entitlement to service connection for skin lesions, claimed as keloids, to include as due to herbicide exposure is remanded.

The Board incorporates its discussion from the sections above by reference.  A remand is necessary for additional development.

VA has a duty to assist claimants in obtaining evidence to substantiate all substantially complete initial and supplemental claims, and when a claim is returned for readjudication by a higher-level adjudicator or the Board after identification of a duty to assist error on the part of the agency of original jurisdiction, until the time VA issues notice of a decision on a claim or returned claim. VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. VA will not pay any fees charged by a custodian to provide records requested. When a claim is returned for readjudication by a higher-level adjudicator or the Board after identification of a duty to assist error, the agency of original jurisdiction has a duty to correct any other duty to assist errors not identified by the higher-level adjudicator or the Board.  38 C.F.R. § 3.159 (c)

VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to military records, including service medical records; medical and other records from VA medical facilities; records from non-VA facilities providing examination or treatment at VA expense; and records from other Federal agencies, such as the Social Security Administration. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.  38 C.F.R. § 3.159 (c)(2).

VA has a history of considering documents that were not literally before an examiner to be constructively part of a claimant’s record.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  In Bell, the United States Court of Appeals for Veterans Claims (Court) held, “where the documents proffered by the appellant are within the Secretary’s control and could reasonably be expected to be a part of the record ‘before the Secretary and the Board,’ such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record.” Id.  

Ongoing private dermatological records received in April 2017 show skin disability prior to the December 2009 prostate surgery.  Private treatments records from Dr. M. H. from Associated Dermatologists, P.C. dating back to July 2001 show impressions of keloids in the thigh and chest areas.  The private treatment records show that the keloids were treated with cortisone injections, liquid nitrogen and some had to be excised over the years.

Importantly, slipped in with the private treatment records is a December 29, 1984 “AGENT ORANGE CLAIM FORM.” (capitalization in original.)  In Part II on the second page, the Veteran described acne-like lesions on his chest area as well as persistent rash which left scarring on his groin area.

Next, the aforementioned November 3, 2015 VA Agent Orange Examination at the Southern Arizona VA HCS, labeled as CAPRI, showed no unusual skin lesions, rashes, or keloids.  

One year later, the October 30, 2016 VA 21-526EZ Application for Disability Compensation and Related Compensation Benefits shows on page 8 that there are relevant medical records from the Dwight D. Eisenhower VA Medical Center in Leavenworth, Kansas from October 1, 1969 to October 31, 1969.  

Next, a March 22, 2017 VA Form 27-0820 Report of General Information is of record.  It shows: 

Veteran reported treatment within the Leavenworth VA Health Care System beginning in 10/01/1969 to 10/31/1969. No records exist in CAPRI. Two attempts have been made to

Leavenworth VAMC. No response. It can be reasonable construed that older records do not exist.

Based on the information received, we will make no further attempts to obtain records as it can be reasonably assumed they do not exist.

Next, the April 2017 VA examiner remarked, “Based on review of STR Separation exam dated 8/26/69 as well as Agent Orange Exam dated 11/3/15, and Dr. [E.’s] records pertaining to treatment of keloids, there is no evidence based on clinical exam and records review that veteran has ever been diagnosed with chloracne.”  Still, she also emphasized, “Separation Physical exam dated 8/26/69: Veteran answered ‘NO’ to query regarding: Have you ever had or have you now; skin diseases. Tabbed notes from Dr. [E.] verify treatment for multiple keloids in        2001, 2004, and 2007.”

Next, the Veteran submitted a January 2020 Brief.  The relevant argument to these issues begins on page 8.  The Veteran challenges the findings of the April 2017 VA examiner.  He avers that during out-processing, he made an appointment with the Eisenhower VA Medical Center (VAMC) in Leavenworth, Kansas shorter after he returned home.  He made several visits to that facility, which he has repeated as part of this claims process.  He concludes, “Despite the DVA’s statement that the Department has no immediate post discharge records in its files, I support my claim that I was examined by medical staff at the Eisenhower VA Center with several documents.”  The Veteran also highlights lay statements from his spouse regarding his skin disorders.   

The Veteran was afforded the aforementioned February 27, 2020 VA skin examination with medical opinion.  The VA physician rendered a negative nexus opinion for direct service connection.  The VA examiner reasoned:

The veteran states that in 2010 abdominal surgical scars from a 2009 prostatectomy became keloided and those scars about his belt line were painful. This has been treated with topical betamethasone. He also states that an unrelated resolved Chloracne acne about the chest and groin keloided in 1968 and were later treated in the 1970s with topical cortisone compounds. These acne scars will all have an unusual consistent horizontal linear pattern. Groin lesions have been excised multiple times.

Although the veteran states that he did not purport his currently noted skin lesions, there is no evidence that his military Separation Examination was deferred. It would not seem likely that the examining physician would miss such obvious findings on even the most rudimentary visual survey of the veteran. The claimed skin lesions was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. No objective evidence to warrant a new additional skin lesion/keloid diagnosis.

Similarly, in the August 2020 Brief, the Veteran reiterates his request for VA to obtain and review outstanding VA treatment records from the Eisenhower VAMC from 1969.  In bold, the Veteran identified, “Missing medical records from the Eisenhower VA Center and from my Claim file” (emphasis in original.)  The Veteran describes, “These records could be crucial to my claims for keloids secondary to chloracne (or other dioxin-induced skin conditions) and peripheral neuropathy).  The Veteran goes on to write, “I contested the VA’s claim that the records are missing and its use of the missing records as evidence against my claims. My detailed statement is found on pages 9 and 10 of the statement I gave at the Decision Review hearing on January 27, 2020.  I show that VA documents indicate that the records were pulled from records centers and submitted to requesting VA subagencies as early as February and March 1970 and as recently as January 2017.”   

In the instant case, the Veteran has identified some evidence of skin pathology, variously diagnosed as keloids, from several years before abdominal surgery.  However, the lay and medical evidence still suggests the onset of variously diagnosed disability from several decades after service.  There is some evidence of continuity by way of the lay statements, but there is also medical evidence to the contrary.  In short, there is inconsistent evidence of a nexus.

Above all, the Veteran through his attorney has continued to reiterate that VA should obtain outstanding VA treatment records from the Eisenhower VAMC in 1969, which will show the onset of skin pathology shortly after separation.  The law provides that VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal, to the extent they exist.  The March 22, 2017 VA Report of General Information only shows that CAPRI records do not exist.  It is likely that the CAPRI computer record system was implemented after 1969.  In addition, there is a finding of “No response” rather than a negative response from the VAMC.  The Veteran through his attorney has repeated that such records should exist, or at the very least, that he sought treatment at a VA facility in 1969 after separation.  See January 2020 Brief; see also August 2020 Brief.   Therefore, and in light of the Veteran’s repeated requests, a remand is required for VA to make another atetmpt to obtain these records for consideration.  38 C.F.R. § 3.159 (c)(2); Bell, supra.  If these specific records are not available or do not exist, this should also be affirmatively documented via a memorandum in the claims file.  A report that there has been no response is not sufficient.

Second, there is lay and incomplete medical evidence of a positive nexus, and the Veteran has advanced a theory of direct service connection based on herbicide exposure under Combee, supra.  The Board obvserves that the Board may not draw its own medical conclusions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).   Indeed, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Febraury 2020 VA examination not fully address a theory of direct service connection as due to herbicide exposure.  Therefore, to fully address the Veteran’s lay contentions, to opine on these complex medical issues, and to assist in fully developing the Veteran’s claim, a VA examination with medical opinion is necessary.  

3. Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to herbicide exposure is remanded.

4. Entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to herbicide exposure is remanded.

5. Entitlement to service connection for a disability manifested by pain in the long bones, to include as due to herbicide exposure is remanded.

6. Entitlement to service connection for a disability manifested by tingling in the feet, to include as due to herbicide exposure is remanded.

The Board incorporates its discussion from the sections above by reference.

The Board observes that pain as organic disease of the nervous system is a recognized chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection.  See 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In light of the Veteran’s lay statements regarding his symptoms, the Board observes that the Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Since Layno, Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability.  See Saunders v. Wilkie, 886 F.3d 1356 (2018).  The Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  The Board observes that Saunders does not eliminate the need for underlying pathology, disease, or injury (also sometimes called a diagnosis).  We note that Saunders was in the context of the musculoskeletal system, though it does not explicitly hold that it is limited to such circumstances.  Recently, the United States Court of Appeals for Veterans Claims (Court) in Martinez-Bodon v. Wilkie clarified that the Federal Circuit’s decision in Saunders is not limited to pain.  Rather, the definition of “disability” in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any “condition” that results in “functional impairment of earning capacity,” including a psychiatric condition.  

By way of evidentiary history, in the Agent Orange claim form dated December 29, 1984, the Veteran did not report any numbness or tingling. 

Later, the VA Agent Orange examination dated November 3, 2015 shows that no neuropathy was reported or later diagnosed.  Sensation and strength were grossly intact.    

Next, the Veteran was afforded a March 31, 2017 VA peripheral nerves examination, received in April 2017.  The neurologist ultimately rendered a diagnosis of moderate peripheral polyneuropathy of the lower extremities.  The Veteran also provided a lay history:

Mr. [Veteran] reports that he was in the Army and served in VietNam from1968-1969. He states that while in VietNam he noted that in the dry season he would experience a sensation of pins and needles in the soles of  his feet and distal legs “like they were asleep”.  He states that he also noted pain which felt as if “there was fire in my bones”. He states that when he left the military he completed his post discharge exam at the Fort Leavenworth VAMC. He reports that he reported the numbness and tingling in his feet at that time but no further evaluation or treatment was done.  

The VA examiner also considered 2016 private treatment records showing a remote diagnosis of peripheral neuropathy.  The issue remained a nexus.

Ongoing private treatment records from Mendoza Medical were received on July 10, 2020.  A private treatment record dated September 26, 2017 on page five of the packet shows in part, “polyneuropathy due to other toxic agents.”  There is no further nexus opinion with rationale.    

Recently, in February 2020, the Veteran was afforded a VA peripheral nerves examination with medical opinion.  The VA physician performed a complete physical examination, and ultimately rendered a negative nexus opinion for direct service connection.  The VA examiner reasoned:

The veteran states that in 1969 he began experiencing tingling and pain of both lower extremities. He was Diagnosed with peripheral neuropathy of the lower extremities but this is not treated and worsening slightly. He denies any other conditions that may be causing this such as diabetes.

C-file:

*MAR 31, 2017 COMPENSATION & PENSION EXAM by [D.] K. [M], MD - Neurologist chronicles of this veteran: “He states that when he left the military he completed his post discharge exam at the Fort Leavenworth VAMC. He reports that he reported the numbness and tingling in his feet at that time but no further evaluation or treatment was done.” And, "Although the Veteran reports that the numbness and tingling in his feet began in Vietnam and that he reported these symptoms at the time of his post discharge exam at the Fort Leavenworth VAMC, a Report of General Information dated 03/22/2017 indicates that no records regarding this exam exist. At the time of his Separation Exam dated 26 Aug 1969 his neurologic exam was marked as normal and there was no documentation indicating that Mr. [Veteran] reported numbness or tingling in his lower extremities. There are no records in VBMS documenting that the Veteran reported numbness and tingling to providers during the 1970s after leaving the service. At the time of his Agent Orange Registry exam on 11/03/2015 the examiner states “Claimant has no reported history of... peripheral neuropathy”. The first documentation of these symptoms was in August of 2016 when he reported these symptoms to Dr. [M.] [H.], his PCP and was referred for an EMG.”

Agree with the above that has been reviewed and considered. The claimed peripheral neuropathy of the lower extremities was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.

Next, in the January 2020 Brief, the Veteran submits several pages of lay evidence and argument in support of his claims for bilateral lower extremity peripheral neuropathy, pain in the long bones, and tingling in the feet.  This begins on page 13.  Up front, he writes, “I addressed the lack of DVA records in my discussion of my claim for chloracne and its secondary effects.”  The Veteran contends, “I have peripheral neuropathy.  I experience tingling and burning sensations in my feet and legs. I claim that these symptoms began in Vietnam and are the result of exposure to dioxin and other toxic substances to which I was exposed.”  See January 2020 Brief, p. 14.

Recently, the Veteran was afforded an August 2020 VA peripheral nerves examination with medical opinion.  This was for the upper as opposed to lower extremities.  

Here, the Veteran has competently reported continuity of various lower extremity symptoms since separation.  The law regarding impairment due to pain has been clarified by way of Saunders.  There are also potentially outstanding VA treatment records that would help corroborate the Veteran’s lay history.  The Veteran has advanced a theory of entitlement that includes direct service connection based upon herbicide exposure pursuant to Combee.  On page 15 of the January 2020 Brief, the Veteran also provides a detailed history of the “Onset of Peripheral Neuropathy.”  (emphasis in original.)  VA should obtain a new VA examination with medical opinion that addresses all theories of entitlement.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Therefore, after the attempt is made to obtain the VA treatment records from 1969, the Veteran should be afforded a new VA peripheral nerves examination that considers these lay statements and includes a medical opinion for direct service connection to herbicide exposure.  See Combee, supra.  On remand, the Veteran through counsel is also invited to submit private medical opinions concerning the onset and etiology of peripheral neuropathy, pain in the long bones, and tingling in the feet.  Therefore, a remand is warranted.  

The matters are REMANDED for the following action:

1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder.

2. Obtain the Veteran’s VA treatment records from 1969 at the Eisenhower VA Medical Center (VAMC) in Leavenworth, Kansas.  See August 6, 2020 Brief.  Document all attempts to obtain these records.  Contact the Veteran or his attorney for additional details if necessary.  To the extent possible, the search should not be limited only to the CAPRI electronic file system.

If they are not available or do not exist, document this in a formal memorandum in the claims file.

3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any skin disability, variously claimed as chloracne, and skin lesions, claimed as keloids disability.  The Board highlights that these claims are coded under DC 7829 and DC 7805, respectively, and encompass any pathology separate from what is discussed above related to abdominal scars.  The claims file should be made available to the VA examiner for review and the examiner’s report should reflect that the review was conducted.  

For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.

The VA examiner should specifically provide an etiology opinion for direct service connection that includes a consideration of conceded exposure to agent orange.  See Combee, supra.  

The VA examiner should discuss the Veteran’s lay contentions, including those in the August 6, 2020 Brief, submitted on attorney letterhead along with a VA 21-4138 Statement in Support of Claim.

The examiner should provide a rationale for all opinions expressed.

4. Please schedule the Veteran for a VA examination to determine the nature and etiology of any peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, a disability manifested by pain in the long bones, and a disability manifested by tingling in the feet.  The claims file should be made available to the VA examiner for review and the examiner’s report should reflect that the review was conducted.  

For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.

The VA examiner should specifically provide an etiology opinion for direct service connection that includes a consideration of conceded exposure to agent orange.  See Combee, supra.  

The VA examiner should discuss the Veteran’s lay contentions, including those in the August 6, 2020 Brief, submitted on attorney letterhead along with a VA 21-4138 Statement in Support of Claim.

The examiner should provide a rationale for all opinions expressed.

(Continued on next page.)

5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority.  If any benefits sought are not granted, issue the Veteran and his attorney an appropriate Supplemental Statement of the Case (SSOC).

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Bodi, Associate 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.