Citation Nr: 21071303 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-07 860 DATE: November 30, 2021 ORDER Entitlement to service connection for benign prostatic hypertrophy (BPH) is denied. Prior to November 3, 2014, an initial rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy, is denied. Prior to November 3, 2014, an initial rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy, is denied. Beginning November 3, 2014, a 20 percent rating, but not higher, for right lower extremity diabetic peripheral neuropathy, is granted. Beginning November 3, 2014, a 20 percent rating, but not higher, for left lower extremity diabetic peripheral neuropathy, is granted. Beginning April 18, 2014, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the diagnosed BPH had its onset during service or is otherwise related to it, to include conceded exposure to herbicide agents. 2. For the initial rating period on appeal prior to November 3, 2014, the Veteran's right lower extremity neuropathy resulted in mild intermittent pain, paresthesias, and numbness. 3. For the initial rating period on appeal prior to November 3, 2014, the Veteran's left lower extremity neuropathy resulted in mild intermittent pain, paresthesias, and numbness. 4. Beginning November 3, 2014, the Veteran's right lower extremity neuropathy resulted in moderate intermittent pain, paresthesias, and numbness; however, the impairment was wholly sensory. 5. Beginning November 3, 2014, the Veteran's left lower extremity neuropathy resulted in moderate intermittent pain, paresthesias, and numbness; however, the impairment was wholly sensory. 6. For the entire initial rating period on appeal beginning April 18, 2014, the Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria to establish service connection for BPH are not met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Prior to November 3, 2014, the criteria for an initial rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8521. 3. Prior to November 3, 2014, the criteria for an initial rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8521. 4. Beginning November 3, 2014, the criteria for a 20 percent rating, but not higher, for right lower extremity diabetic peripheral neuropathy are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8521. 5. Beginning November 3, 2014, the criteria for a 20 percent rating, but not higher, for left lower extremity diabetic peripheral neuropathy are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8521. 6. Beginning April 18, 2014, the criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1970. In November 2019, the Veteran testified at a video conference hearing before a Veterans Law Judge who is no longer employed at the Board. The Veteran was provided an opportunity to testify at another hearing; however, in April 2021, he declined to appear in another hearing. A transcript of the November 2019 hearing is available in the record and has been reviewed. In April 2020, the Board remanded the appeal for further development. Subsequently, in a February 2021 rating decision, the RO granted service connection for an acquired psychiatric disorder and pulmonary disease. These are considered full grants of the benefits sought on appeal, and as such, these issues are no longer in appellate status. This rating decision also granted entitlement to a TDIU effective February 9, 2017. As will be discussed below, the issue of entitlement to a TDIU prior to this date remains on appeal. Service Connection for BPH Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, which includes ischemic heart disease. Service connection may be presumed for ischemic heart disease for a Veteran exposed to an herbicide agent during service if the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran asserts that the diagnosed BPH is related to exposure to herbicide agents. The Veteran's exposure to herbicide agents while serving in the Republic of Vietnam is presumed. However, VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Because the Veteran's BPH is not listed under § 3.309(e) as a disease that are associated with exposure to herbicide agents, the presumption of service connection due to such exposure is not warranted. Nevertheless, the Veteran is not precluded from establishing service connection for BPH through proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, upon review of all the evidence, the Board finds that service connection on a direct basis is also not warranted. Turning to the evidence, the Board notes that service treatment records are silent for any complaints, treatment, or diagnoses of BPH or any other prostate condition. Post-service, beginning in 2005, the Veteran was diagnosed with BPH. At the time, the Veteran noted nocturia and prostate examination revealed enlarged prostate with elevated PSA. In September 2020, the Veteran underwent compensation examination, at which time the examiner confirmed a diagnosis of BPH. After a review of the record and examination of the Veteran, the examiner opined that BPH was less likely than not related to service, to include conceded exposure to herbicide agents. The examiner explained that the medical record had no convincing correlation between herbicide exposure and BPH. The examiner explained that due to the Veteran's age, the time he was diagnosed with BPH was not unusual. In other words, this Veteran's BPH was more likely than not related to his age and not to any environmental exposure. The Board acknowledges that the Veteran stated that he believed his BPH was the result of his exposure to herbicide agents. However, he is a lay person, and under the facts of this case, does not have the requisite medical expertise to render a competent medical opinion in this case regarding the etiology of BPH, when there were no in-service chronic symptoms of BPH, and it manifested many years after service. A mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, the 2020 examiner, a physician, reviewed the claims file and found no indication that the BPH is related to exposure to herbicide agents. This examiner explained that given the time of diagnosis, it was more likely than not related to the Veteran's age and not to service, to include exposure to herbicide agents. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical or competent lay opinion of record. The Board finds that the probative medical evidence outweighs the lay assertions in this case. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for BPH and the benefit-of-the-doubt doctrine is therefore not applicable. The claim is therefore denied. Increased Rating Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lower Extremity Peripheral Neuropathy Rating Criteria In this case, the RO rated the Veteran's service-connected peripheral neuropathy of the right and left lower extremities as 10 percent disabling each, under 38 C.F.R. § 4.124a, DC 8621. However, the Board finds that DC 8521 is more appropriate as the 2020 VA examiner found that the Veteran has peripheral neuropathy involving the external popliteal nerve, bilaterally. Pursuant to DC 8521, a 10 percent rating is assigned for mild incomplete paralysis of the external popliteal nerve. A 20 percent rating is assigned for moderate incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis. A maximum 40 percent rating is assigned for complete paralysis of the external popliteal nerve manifested by foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8521. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie, 30 Vet. App. 157 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Lower Extremity Peripheral Neuropathy Rating Analysis Prior to November 3, 2014 In October 2014, the Veteran underwent a VA diabetic sensory-motor peripheral neuropathy examination, at which time the examiner confirmed a diagnosis of mild bilateral lower extremity diabetic peripheral neuropathy. The Veteran reported that he noticed electrical shocks in both feet. He was not sure when this started but noticed that it worsened in the few weeks preceding the examination. The symptoms were mainly at night. The Veteran noted that his primary care physician found no sensory deficits during a check-up in September 2014. Symptoms of the neuropathy included mild intermittent pain, paresthesias, and numbness. Upon physical examination, muscle strength testing was normal (5/5). Reflex and sensory examinations were normal throughout. However, the examiner then noted that sensory examination of the lower extremities showed decreased light touch in the soles of both feet and in both big toes. There was no evidence of muscle atrophy and no trophic changes were noted. The examiner did not confirm the level of severity but rather checked "normal" for involvement of both the sciatic and femoral nerves. On review, during this initial rating period on appeal, the Board finds that a rating higher than 10 percent is not warranted for either lower extremity. Specifically, only mild symptoms were reported during this time with no evidence of continuous treatment or any other symptoms that qualify as moderate. Moreover, the actual examination of the Veteran was normal with no actual symptoms other than the subjective "electrical shocks" the Veteran felt. Accordingly, an initial rating higher than 10 percent is not warranted. Beginning November 3, 2014 In the November 2014 notice of disagreement, the Veteran indicated that he believed he was entitled to a higher rating. He noted that his ankles swelled up and that his feet had numbness, arthralgia, and pain, which prevented standing for any length of time. He could not walk very far or engage in any physical activity. According to September 2016 VA treatment records, a sensory examination of the feet was normal. The same was also noted in November 2017. Additional treatment records dated in 2017 are silent for any complaints or treatment relevant to the diagnosed lower extremity diabetic peripheral neuropathy. In June 2017, the Veteran underwent another diabetic peripheral neuropathy examination; however, this examination focused on the upper extremities and the lower extremities were not examined. Subsequent VA treatment records dated in 2018 were silent for any complaints or treatment for lower extremity diabetic peripheral neuropathy other than occasional notations of tingling in both feet. During the November 2019 Board hearing, the Veteran testified that he had a lot more swelling in his feet and ankles, and his skin felt like it was about ready to break apart. VA treatment records dated in 2019 and 2020 did not contain specific treatment for bilateral lower extremity diabetic neuropathy. In September 2020, the Veteran underwent an additional peripheral nerves conditions compensation examination, at which time the examiner confirmed a diagnosis of bilateral lower extremity peripheral neuropathy. The Veteran indicated that the condition progressed/worsened and that he experienced symptoms of pins, tingling, numbness, and swelling of both feet. The examiner identified symptoms of moderate intermittent pain, paresthesias, and numbness, bilaterally. Upon physical examination, muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex examination was normal throughout. Sensory examination was decreased in the lower leg/ankle and foot/toes, bilaterally. There were no trophic changes. The Veteran's gait was normal. The examiner concluded that the Veteran's diabetic neuropathy was analogous to mild incomplete paralysis of the external popliteal nerve, bilaterally. On review, during this rating period on appeal, the Board resolves all doubt in the Veteran's favor in finding that a 20 percent rating is warranted for each lower extremity. Notably, the Veteran complained of increase in severity on November 3, 2014, which was confirmed by notation of moderate symptoms in the subsequent VA examination. In so finding, the Board notes that the 2020 examiner concluded the condition was analogous to mild incomplete paralysis; however, as noted above, during the examination, the examiner confirmed the Veteran's symptoms were moderate in severity. Nevertheless, a rating higher than 20 percent is not warranted. As discussed above, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Here, the only evidence was of sensory deficit. Specifically, muscle strength and reflex examinations were normal. There were no trophic changes or any other symptoms that were not sensory. As such, a 20 percent rating higher, but not higher, is warranted. TDIU effective April 18, 2014 As discussed above, the RO assigned a February 9, 2017 effective date for the award of a TDIU. As noted by the RO, this was the date the Veteran met the schedular criteria; however, on review, the Board finds that the Veteran met the schedular criteria for a TDIU for the entire rating period on appeal beginning April 18, 2014. (Continued on the next page) It is indisputable that the Veteran has not worked in a gainful occupation at any time during the pendency of the appeal as a result of his service-connected disabilities. Specifically, he had to stop working as a truck driver after his CDL license was revoked due to his inability to feel the pedals while driving. Accordingly, a TDIU is granted for the entire rating period on appeal beginning April 18, 2014. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.