Citation Nr: 21001621 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-28 331 DATE: January 11, 2021 ORDER Entitlement to a rating in excess of 20 percent for narcolepsy is denied. Entitlement to a rating in excess of 10 percent for hypertension is denied. REMANDED Entitlement to service connection for prostate cancer, claimed as the result of insecticide and herbicide agent exposure, is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to service connection for a right lower extremity disability, to include cramping and edema, is remanded. Entitlement to service connection for a left lower extremity disability, to include cramping and edema, is remanded. Entitlement to a rating in excess of 10 percent prior to June 20, 2008, and in excess of 20 percent as of June 20, 2008, for a left (minor) shoulder disability is remanded. Entitlement to a compensable rating prior to December 19, 2013, and in excess of 10 percent as of December 19, 2013, for a left knee disability is remanded. Entitlement to an initial compensable rating for right first and second toe crush injury residuals is remanded. FINDINGS OF FACT 1. Narcolepsy has been shown to be manifested by no more than four narcoleptic episodes a week. 2. Hypertension has been shown to be manifested by diastolic pressure of predominantly 90 or less and systolic pressure of predominantly 159 or less and the need for continuous anti hypertensive medication. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for narcolepsy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Codes 8108, 8911. 2. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1964 to May 1991. The Veteran appeared at a December 2017 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In May 2019, the Agency of Original Jurisdiction established service connection for left ankle degenerative arthritis. In June 2020, the Agency of Original Jurisdiction established service connection for both diabetes mellitus and erectile dysfunction. In September 2020, the Board of Veterans’ Appeals (Board) denied an increased rating for bilateral hearing loss. The issues of entitlement to service connection for a left ankle disability, diabetes mellitus, and erectile dysfunction and an increased rating for bilateral hearing loss are no longer on appeal and will not be addressed below. Increased Ratings Disability ratings are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Narcolepsy Narcolepsy is to be rated as petit mal epilepsy. 38 C.F.R. § 4.124a, Diagnostic Code 8108. Petit mal epilepsy is to be rated under the General Rating Formula for minor seizures. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). The General Rating Formula for Major and Minor Epileptic Seizures directs that a 20 percent rating is warranted where there are at least two minor seizures in the last six months. A 40 percent rating requires an average of five to eight minor seizures a week. A 60 percent rating requires an average of nine to ten minor seizures a week. An 80 percent rating requires more than 10 minor seizures a week. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Where there is a question as to which of two ratings 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. The report of a January 2009 Department of Veterans Affairs (VA) narcolepsy examination states that the Veteran reported that “he dozes for 5-10 minutes;” if he “gets sleepy while driving, he will just stop and close his eyes for a few minutes;” and he had “never slept while driving, no accidents.” He clarified that “the frequency of the attacks varies, they might not come for 3-6 months, they might come one or a few days, usually at 1:00 or 2:00, or 3:00 P.M.” The Veteran was diagnosed with “narcolepsy by history in remission.” The report of a December 2009 VA narcolepsy examination states that the Veteran presented a history of “periods of extreme fatigue where he falls asleep easily” and “periods of ‘sleep paralysis’ where he knows he is awake, but he cannot move until suddenly he jerks awake.” The Veteran was diagnosed with “narcolepsy by history in remission.” In a March 2010 notice of disagreement, the Veteran indicated that the narcolepsy was productive of “attacks of at least 1 week at least 4 times in the last 12 months.” He stated that “I know that between 3-5 P.M. I must not be involved in anything dangerous like driving because I go to sleep without warning.” In an August 2012 substantive appeal, the Veteran asserted that the narcolepsy affected his “lifestyle since I can go to sleep in the middle of writing reports and bid submissions as a contractor” and “narcoleptic episodes happen at least weekly.” The report of a May 2017 VA sleep disabilities examination states that the Veteran “describes narcolepsy as a feeling like he is awake but is dreaming, may see things on the wall;” “gets sleepy 2-3pm, may sleep for 5 minutes and have weird dreams;” and “occasionally has episodes where he feels like he is awake and can hear everything but can’t move, this may last minutes.” He reported no narcolepsy treatment. He was diagnosed with narcolepsy. At a December 2017 Board hearing, the Veteran testified that he fell asleep in the afternoon and used energy drinks to stay awake. The report of an April 2019 narcolepsy examination conducted for VA states that the Veteran reported that the narcolepsy was “intermittent, comes & goes;” it occurs “once a month, notices for week at a time, then resolves for 2-3 weeks;” he experienced “one to two episodes per month;” the “most recent episode was last week and he did not miss work;” he has “never went to sleep while driving;” “he has stopped, pulled over when felt it coming on;” he “had awareness of symptoms prior to a narcoleptic episode;” and he controlled the narcolepsy “with energy drinks.” The examiner clarified that the Veteran experienced “0-4 narcoleptic episodes per week.” The Veteran was diagnosed with narcolepsy. The Veteran asserts that an increased rating is warranted for narcolepsy as the disability is symptomatic and is manifested by one to two episodes a month. The report of the April 2019 VA narcolepsy examination states that the diagnosed narcolepsy was productive of between zero and four narcoleptic episodes a week. The narcolepsy has not been shown to be productive of more than four narcoleptic episodes a week at any time during the relevant time period. The Board finds that those symptoms fall squarely within the criteria for a 20 percent rating under the General Rating Formula for Major and Minor Epileptic Seizures. The Board finds that the preponderance of the evidence is against a finding that the criteria for any higher rating are met. In the absence of any subjective or objective evidence reflecting that the Veteran experiences five to eight narcoleptic episodes a week on average, the Board concludes that a rating in excess of 20 percent for narcolepsy is not warranted. Therefore, the claim must be denied. 38 C.F.R. § 4.124a, Diagnostic Codes 8108, 8911. Hypertension A 10 percent rating is warranted for hypertensive vascular disease with diastolic pressure of predominantly 100 or more; systolic pressure of predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. A June 2007 VA treatment record shows that the Veteran had a blood pressure reading of 131/59. A January 2008 VA treatment record shows that the Veteran had a blood pressure reading of 124/68. A November 2008 VA treatment record shows that the Veteran had a blood pressure reading of 140/70. The report of a January 2009 VA hypertension examination shows that the Veteran reported taking anti-hypertensive medication which kept hypertension in good control. On examination, the Veteran exhibited blood pressure readings of 133/59, 120/60, and 117/65. The examiner diagnosed with hypertension. The report of a December 2009 VA hypertension examination shows that the Veteran exhibited blood pressure readings of 149/74 and 147/72. The examiner stated that the Veteran’s blood pressure was “currently elevated since he discontinued his amlodipine.” A September 2010 VA treatment record states that the Veteran exhibited a blood pressure reading of 128/74. Clinical documentation dated in June 2012 from S.Sukumar, M.D., shows that the Veteran exhibited a blood pressure reading of 123/70. The doctor commented that the diagnosed hypertension was “better controlled now.” In an August 2012 substantive appeal, the Veteran reported that the hypertension was not under control; he was hospitalized in October 2011 because he passed out while shopping; and his “blood pressure has fluctuated wildly.” An October 2012 VA treatment record shows that the Veteran had a blood pressure reading of 155/55. A November 2013 VA treatment record shows that the Veteran had a blood pressure reading of 159/86. The Veteran was noted to have not taken his anti hypertensive medication. A May 2014 VA treatment record shows that the Veteran had a blood pressure reading of 138/65. A December 2014 VA treatment record shows that the Veteran had a blood pressure reading of 118/58. A December 2016 VA treatment record shows that the Veteran had a blood pressure reading of 140/90. The report of a May 2017 VA hypertension examination shows that the Veteran took anti-hypertensive medication and had blood pressure readings of 131/66, 140/68, and 133/67. A January 2017 VA treatment record shows that the Veteran had a blood pressure reading of 110/54. At a December 2017 Board hearing, the Veteran testified he took anti hypertensive medication. A private clinical documentation dated in February 2018 shows that the Veteran exhibited a blood pressure reading of 90/42. Treating medical personnel stated the Veteran “has malignant hypertension that has been extremely difficult to control” and “he requires frequent visits and medication adjustments to ensure adequate control.” VA clinical documentation dated in June 2018 and January 2019 shows that the Veteran had a blood pressure reading of 125/56 and 99/55. An August 2019 VA treatment record notes that the Veteran had a blood pressure reading of 118/59. The report of a December 2019 hypertension examination conducted for VA shows that the Veteran had blood pressure readings 100/55, 105/57, and 91/51. The service-connected hypertension has been shown to be manifested by diastolic pressure of predominantly 90 or less and systolic pressure of predominantly 159 or less and the need for continuous anti hypertensive medication. The Veteran does not assert, and the record does not establish, that the service-connected hypertension has been manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more during the relevant time period. The Board therefore concludes that a rating in excess of 10 percent for hypertension is not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. Accordingly, as the preponderance of the evidence is against a finding that the criteria for a higher rating have been met at any time during the appeal period, the Board finds that the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, claimed as the result of insecticide and herbicide agent exposure, is remanded. In May 2018 Remand instructions, the Board requested that the Veteran was to be scheduled for a VA examination to determine the etiology of prostate cancer and any relationship to active service and the service-connected disabilities. The examiner was requested to review the record and to opine whether it was at least as likely as not (50 percent probability or greater) that prostate cancer had its onset during active service or was related to any incident of service, including the Veteran’s conceded in service insecticide exposure and claimed herbicide agent exposure while in the Republic of Korea. The requested VA examination was conducted in April 2019. The examination report states that the Veteran was diagnosed with prostate cancer and radical prostatectomy residuals. The examiner concluded that “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The nurse practitioner commented that “there is no objective evidence of record to support exposure to Agent Orange;” “Veteran reports exposure to insecticide/herbicide agents during tour in Korea;” and “Veteran’s time serving at the Korean DMZ does not fit the current criteria for serving 4/1/1968 to 8/31/1971.” She did not address the Veteran’s conceded in service insecticide exposure and any relationship to the diagnosed prostate cancer. The Agency of Original Jurisdiction noted the deficiency in the April 2019 examination report and requested an addendum to the examination report. A May 2020 addendum to the April 2019 examination was received. The examiner erroneously stated that the Veteran had “conceded Agent Orange exposure.” The Agency of Original Jurisdiction noted the deficiency in the May 2020 addendum and requested an additional addendum to the April 2019 examination report. A June 2020 addendum to the April 2019 examination was received. The examiner stated that “the Veteran’s claim file was not able to be reviewed.” The examiner commented that “there is no evidence in the current, widely accepted, peer-reviewed literature indicating a link between insecticides/repellents in the development of prostate cancer decades later” and “therefore, it is less likely than not that the Veteran’s prostate cancer is due to an unknown insecticides/repellent exposure while in service.” As the examiner did not review the Veteran’s records, the Board finds that the addendum did not comply with its Remand instructions and is of essentially no probative value. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Agency of Original Jurisdiction’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Because of the cited deficiencies, the Board finds that further VA prostate evaluation is needed. Clinical documentation dated after October 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a kidney disability is remanded. A June 2009 treatment record from Dr. Sukumar shows that the Veteran was diagnosed with chronic kidney disease and nephropathy. The report of a December 2009 VA genitourinary examination states that the Veteran had been “diagnosed with chronic kidney disease in 06/2008 by his local medical doctor.” No kidney disability was diagnosed. The report of an April 2019 kidney examination conducted for VA shows that the examiner concurrently found that, “the Veteran now has or has had a kidney disorder;” he was diagnosed with “other kidney condition: normal;” and “no diagnosis reported or of record for chronic kidney disease.” The examining nurse practitioner concluded that “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner commented that “no symptoms reported on day of exam for kidney problems;” “objective exam is normal;” “there is no objective evidence of a chronic kidney condition;” and “a nexus has not been established.” The examiner did not note or otherwise address Dr. Sukumar’s diagnosis of chronic kidney disease and nephropathy. Because of the cited deficiency and the conflicting findings, the Board finds that the April 2019 VA examination report is of no probative value and further VA kidney examination is needed. 3. Entitlement to service connection for a bilateral lower extremity disability is remanded. The service medical records indicate that the Veteran was seen for bilateral lower extremity complaints. The report of the December 1985 physical examination shows that the Veteran complained of bilateral leg cramping associated with prolonged walks. A December 2009 VA genitourinary examination report states that the Veteran had “persistent edema in both lower extremities, dependent edema secondary to venous insufficiency.” A December 2009 VA joint examination report shows that the Veteran “had chronic dependent edema in both lower extremities involving both feet.” The report of an April 2019 vascular examination conducted for VA states that the Veteran “reports bilateral legs swelling and cramping.” He was concurrently found not to have ever had a vascular disability and to exhibit “persistent edema” of both lower extremities. The examiner concluded that: “Veteran’s report of bilateral leg cramps and edema are treated symptomatically with conservative measures;” “no objective findings of record for chronic diagnosis of peripheral vascular disease or venous disease;” and “no diagnosis warranted.” The nurse-practitioner did not note or otherwise address the December 2009 VA diagnosis of dependent edema secondary to venous insufficiency. Because of the cited deficiency and the conflicting findings, the Board finds that the April 2019 VA examination report is of no probative value and further VA examination is needed. 4. Entitlement to increased ratings for a left (minor) shoulder disability is remanded. The report of a December 2019 shoulder examination conducted for VA states that the Veteran complained of left shoulder difficulty with heavy lifting and repetitive motion. On examination of the left shoulder, the Veteran exhibited a range of motion of forward flexion from 0 to 100 degrees, abduction of 0 to 100 degrees, and internal rotation and external rotation to 50 degrees with pain on all ranges of motion; a range of motion on repeated use of forward flexion from 0 to 80 degrees, abduction of 0 to 80 degrees, and internal rotation and external rotation to 40 degrees;” “objective evidence of pain on passive range of motion testing of the left shoulder;” and functional loss due to pain. The examiner did not indicate either the degree at which the Veteran experienced left shoulder pain or the specific functional loss associated with pain. Because of those deficiencies, the Board finds that further VA shoulder evaluation is needed. 5. Entitlement to increased ratings for a left knee disability and right first and second toe crush injury residuals is remanded. The Veteran was last provided VA examinations which addressed the left knee and the right foot disabilities in May 2017. Because of the passage of over three years, the Board finds that further VA evaluation is necessary to determine the current nature and severity of the service-connected left knee and right foot disabilities. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any prostate, kidney, and lower extremity disabilities and the service connected left shoulder, left knee, and right foot disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated after October 2020. 3. Schedule the Veteran for a VA prostate examination conducted by a medical doctor to assist in determining the etiology of the diagnosed prostate cancer and any relationship to active service and the service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all prostate cancer residuals found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that prostate cancer had its onset during active service or is related to any incident of service, including the conceded in service insecticide exposure and claimed herbicide agent exposure while in the Republic of Korea. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that prostate cancer is due or caused by to the service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that the prostate cancer has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. 4. Schedule the Veteran for a VA kidney examination conducted by a medical doctor to assist in determining the etiology of any identified kidney disability and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the June 2009 treatment record from Dr. Sukumar showing diagnoses of chronic kidney disease and nephropathy, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all kidney disabilities found. If no kidney disability is identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified kidney disability had its onset during active service or is related to any incident of service, including the conceded in service insecticide exposure and claimed herbicide agent exposure while in the Republic of Korea. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified kidney disability is due to diabetes mellitus, hypertension, and the other service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified kidney disability has been aggravated (increased in severity beyond the natural progress of the disorder) by diabetes mellitus, hypertension, and the other service-connected disabilities. 5. Schedule the Veteran for a VA examination conducted by the appropriate medical doctor to assist in determining the nature and etiology of the claimed right and left lower extremity disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all bilateral lower extremity disabilities found, to include any disability manifested by edema or cramping. If no lower extremity disability is identified, the examiner should specifically state that fact and should reconcile that with the evidence of record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any lower extremity disability had its onset during active service or is related to any incident of service, including the documented right and left leg cramping in service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lower extremity disability is due to diabetes mellitus, hypertension, or the other service-connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified lower extremity disability has been aggravated (increased in severity beyond the natural progress of the disorder) by diabetes mellitus, hypertension, and other service-connected disabilities. 6. Schedule the Veteran for a VA shoulder examination conducted by a medical doctor to assist in determining the current nature and severity of the service connected left shoulder disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion, and for weight-bearing and nonweight-bearing, of both shoulders. The degree at which pain is elicited should be specifically noted. (b) State whether there is any additional loss of left shoulder function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) Provide an opinion as to the impact of the left shoulder disability on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the left shoulder disability and the other service connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 7. Schedule the Veteran for a VA knee examination conducted by a medical doctor to assist in determining the nature and severity of the service-connected left knee disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of both knees. The examiner should specifically indicate the degree at which the Veteran experiences pain on motion of the left knee. (b) State whether there is any additional loss of left knee function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) State whether there is any recurrent subluxation or lateral instability of the left knee, and if so, opine as to the severity. (d) Provide an opinion as to the impact of the left knee disability on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the effects of the left knee disability and the other service connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 8. Schedule the Veteran for a VA examination conducted by the appropriate medical doctor in order to ascertain the current nature and severity of service-connected right first and second toe crush injury residuals. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should opine as to the levels of occupational and social impairment caused by the service connected right foot disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.