Citation Nr: 21066615 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-08 506 DATE: November 1, 2021 ORDER Entitlement to an effective date prior to March 14, 2013 for the grant of service connection for adenocarcinoma of the prostate (prostate cancer) is denied. Entitlement to an effective date prior to March 14, 2013 for the grant of service connection for erectile dysfunction is denied. Entitlement to an effective date prior to March 14, 2013 for the grant of special monthly compensation (SMC) for loss of use of a creative organ is denied. Entitlement to a rating in excess of 10 percent for diabetes is denied. REMANDED Entitlement to a rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood is remanded. Entitlement to a compensable rating for erectile dysfunction, to include special monthly compensation (SMC) based on the loss of use of a creative organ, is remanded. Entitlement to a rating in excess of 20 percent for adenocarcinoma of the prostate (prostate cancer) is remanded. Service connection for residuals of a salivary gland tumor is remanded. Service connection for a lung disorder, to include lung nodules, is remanded. Service connection for a back disorder with muscle spasms is remanded. Service connection for a neck disorder with muscle spasms is remanded. Service connection for a left arm disorder with muscle spasms is remanded. Service connection for a right arm disorder with muscle spasms is remanded. Service connection for a left leg disorder with muscle spasms is remanded. Service connection for a right leg disorder with muscle spasms is remanded. Service connection for a heart disorder is remanded. Service connection for a blood disorder, to include anemia, is remanded. Service connection for a kidney disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. VA received the original claim for service connection for prostate cancer on March 14, 2014. 2. The grant of service connection for erectile dysfunction and SMC for loss of use of a creative organ were granted by a January 2015 rating decision as part and parcel of the grant of service connection for prostate cancer. 3. The preponderance of evidence weighs against finding that the Veteran's diabetes required management by insulin or oral hypoglycemic agent. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 14, 2013 for the grant of service connection for prostate cancer have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to March 14, 2013 for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to March 14, 2013 for the grant of service connection for special monthly compensation for loss of use of a creative organ have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for a rating in excess of 10 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015, February 2015, and October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran had a hearing before the undersigned; a transcript is of record. Regarding the duty to assist, in Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, while VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, a Veteran may question an examiner's competency and request the curriculum vitae and other information about the qualification(s) of a medical examiner. Here, in May 2020, the Veteran's representative stated: "While I object to the examination report generally, [VA] attorneys have recently been arguing that I must raise any specific objections to the qualifications of the examiner specifically at the hearing. I currently lack sufficient information to make a detailed objection in that regard." The representative sent a generalized objection for a VA examiner's qualifications in May 2020 without specifying which VA examination she sought to object to. During the April 2021 Board hearing, the representative was told by the undersigned to make a specific objection to the competency of the VA examiner at issue in her post-hearing brief. In the July 2021 post-hearing memorandum, the representative only raised issue with the December 2017 VA psychiatric examiner's credentials; she did not raise challenges to any other VA examiners in the post-hearing brief. The Board concludes she has narrowed her objection to only the December 2017 VA psychiatric examination and this will be addressed in the Remand section below. See Francway, 940 F.3d at 1308. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. 1. Prostate Cancer 2. Erectile dysfunction 3. SMC, Loss of use of a creative organ The Veteran seeks an earlier effective day for the grant of service connection for prostate cancer, erectile dysfunction, and SMC. By a January 2015 rating decision, the RO granted service connection for prostate cancer, as well as service connection for erectile dysfunction and SMC for loss of use of a created organ as part and parcel of the claim for prostate cancer. The Veteran has not set forth any argument in support of his appeal of the effective date for the award of service connection for prostate cancer, erectile dysfunction and grant of SMC. At the April 2021 Board hearing, the representative indicated that they would submit a post-hearing brief with their contentions on these claims. However, the July 2021 post-hearing memorandum is absent for any arguments why earlier effective dates are warranted. The Veteran's service connection claim for prostate cancer was received by VA on March 14, 2014. This is evidenced by the date stamped copy of the claim in the file. Prior to that claim, there are no communications, formal or informal, claiming entitlement to service connection for a prostate disorder, erectile dysfunction, or SMC. See 38 C.F.R. § 3.155 (2014) (informal claims). The regulation makes clear that the effective date of an evaluation and award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, that date would be March 14, 2014. The Board acknowledges that the RO has awarded an effective date of March 14, 2013, but there was no claim filed on that day in the electronic claims file. Consequently, there is no factual basis for an earlier effective date and the Board notes that the RO has awarded a date earlier than the date of claim. As there is no earlier and outstanding claim for service connection for prostate cancer, erectile dysfunction, or SMC, the claim for an effective date prior to March 14, 2013 for the grant of service connection for prostate cancer, erectile dysfunction, and SMC must be denied. As the evidence weighs against these claims, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 4. Diabetes The Veteran seeks a higher rating for diabetes. Diabetes has been rated as 10 percent disabling under Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. A 40 percent rating is warranted where insulin, restricted diet, and regulation of activities is required. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119. Importantly, each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In addition, the criteria for rating diabetes mellitus are conjunctive, meaning that each element of the criteria must meet the requirements for the specified rating. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). Here, a rating in excess of 10 percent is not warranted for diabetes because the preponderance of evidence is against finding that the Veteran's diabetes required use of insulin or an oral hypoglycemic agent. Dispositive to the Board's finding is that the majority of evidence indicates the Veteran's diabetes was controlled by diet. During the April 2021 Board hearing the Veteran testified that he was not on insulin or tablets but watched what he eats. His testimony is credible as it is corroborated by the medical treatment evidence of record. By way of example, a September 2014 private treatment note stated the Veteran had newly diagnosed diabetes managed by diet, but then by January 2015 reported only prediabetes. VA primary care notes from January 2018 and February 2020 further indicated the Veteran's diabetes was controlled with diet. The Veteran's lay statements are also corroborated by the December 2017 VA examination, which provided that the Veteran's diabetes was managed by diet and exercise. The examiner explained that in 2014 the Veteran was diagnosed as having diabetes and then prescribed oral Tradjenta daily. However, the oral agent was briefly taken and then discontinued in favor of ongoing diet and exercise management. In reaching this conclusion, the Board has reviewed the medical treatment evidence associated with the claims file and there is no indication that for a majority of the appellate period that diabetes required insulin or an oral hypoglycemic agent. The Board acknowledges that there may have been a brief period in 2014 where the Veteran was on Tradjenta; however, throughout the majority of the appeal diabetes was controlled by diet only. The Board also acknowledges the Veteran's lay statements at the hearing and finds they too are dispositive. As the majority of evidence does not reflect that the Veteran's diabetic treatment regimen has included medications for control of his diabetes, the criteria for a rating in excess of 10 percent are not met. 38 C.F.R. § 4.7; see also Camacho, 21 Vet. App. 360. Additionally, the rating schedule provides for the separate evaluation of complications of diabetes, so long as those complications are of such a severity to warrant a compensable rating under the appropriate diagnostic code. However, the evidence of record does not indicate compensable diabetic complications were present. In sum, the Board finds that the preponderance of the evidence is against this claim, and a rating in excess of 10 percent is not warranted. REASONS FOR REMAND Increased Ratings 5. Adjustment disorder Considering the conflicting evidence as to severity of record and in light of the contentions regarding severity presented at the hearing and subsequent brief, the Board finds an updated VA examination regarding severity is warranted. 6. Erectile dysfunction, to include SMC for loss of use of a creative organ 7. Prostate cancer The Veteran contended during the April 2021 Board hearing that he believes he has an internal deformity. While the Veteran has received prostate examinations during the appellate period, none specifically addressed the presence of a deformity sufficient to rate his erectile dysfunction. Accordingly, the matter of an increased rating for erectile dysfunction is remanded for a VA examination to ascertain whether an external or internal deformity is present. The issue of SMC for loss of use of a creative organ and an increased rating for prostate cancer are inextricably intertwined with the increased rating claims for erectile dysfunction. A remand of these claims is thus required. Service Connection 8. Residuals of salivary gland tumor The Board cannot make a fully-informed decision on the issue of service connection for residuals of salivary gland tumor because no VA examiner has opined whether it is related to conceded in-service herbicide exposure. Private medical records indicate that a salivary gland tumor was remove, to the extent such tumor is determined by the examiner to not be a presumptive condition under 38 C.F.R. § 3.309, service connection remains available on a direct basis and should be considered. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 9. Lung disorder The Board cannot make a fully-informed decision on the issue of service connection for a lung disorder, to include lung nodules, because no VA examiner has opined whether it is related to conceded in-service herbicide exposure. Private medical records indicate soft tissue nodules, to the extent such nodules are determined by the examiner to not be a presumptive condition under 38 C.F.R. § 3.309, service connection remains available on a direct basis and should be considered. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 10. Back disorder with muscle spasms 11. Neck disorder with muscle spasms 12. Left arm disorder with muscle spasms 13. Right arm disorder with muscle spasms 14. Left leg disorder with muscle spasms 15. Right leg disorder with muscle spasms The Veteran seeks service connection for muscle spasms affecting various body parts, which he contends are due to conceded herbicide exposure. At the Board hearing, the Veteran described these muscle spasms as "electricity" going through his spine out to his extremities. He further reported that he is on muscle relaxants, which is documented in treatment records. The claims certified for appeal similarly reflect service connection for muscle spasms of various body parts. However, the record reflects no muscle disorder. There are other diagnoses of lumbar intervertebral disk disorder with myelopathy, and a cervical disc disorder with possible neurologic manifestations. The United States Court of Appeals for Veterans Claims (Court) has indicated that the scope of a service connection claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, based on the diagnoses in the record, the Board has recharacterized these claims as disorders of the back, neck, arms, and legs with muscle spasms. The Board cannot make a fully-informed decision on these issues because no VA examiner has opined whether they are related to conceded herbicide exposure and thus remand is required. To the extent such disorders are determined by the examiner to not be a presumptive condition under 38 C.F.R. § 3.309, service connection remains available on a direct basis and should be considered. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 16. Heart disorder 17. Blood disorder 18. Kidney disorder The Veteran contends, in part, that he has a heart disorder and a blood disorder due to conceded herbicide exposure. He has contended that his chronic kidney disease is interrelated to these disorders or vice versa. The Board cannot make a fully-informed decision on these issues because no VA examiner has opined whether they are related to conceded herbicide exposure and thus remand is required. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 19. TDIU The issue of TDIU is inextricably intertwined with the above remanded increased rating claims. The issue of TDIU was raised during the April 2021 Board hearing. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As this matter is being remanded, the Veteran should have an opportunity to submit VA Form 21-8940. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination regarding increased rating for the service-connected psychiatric disability. 3. After completion of directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected erectile dysfunction. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include a clear opinion of whether there is an internal or external deformity. 4. After completion of directive #1, schedule the Veteran for a VA examination to determine if the following disorders are at least as likely as not related to service, including conceded herbicide exposure: (a.) residuals of a salivary gland tumor; (b.) lung disorder, to include lung nodules; (c.) back disorder with muscle spasms; (d.) neck disorder with muscle spasms; (e.) left and right arm disorders with muscle spasms; (f.) left and right leg disorders with muscle spasms; (g.) heart disorder, to include aortic valve regurgitation and replacement; (h.) blood disorder, to include anemia; and (i.) kidney disorder, to include chronic kidney disease. The examiner must review the claims file. An opinion that the disability is not one on the presumptive list will not be considered adequate. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions. In providing the requested opinion, consider the Veteran's description of his symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's conceded herbicide exposure represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.