Citation Nr: 21073107 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-28 017 DATE: December 7, 2021 ORDER Service connection for hyperplasia of the prostate is denied. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a left hand condition is remanded. FINDINGS OF FACT 1. The Veteran's hyperplasia of the prostate was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, including exposure to herbicides. 2. Throughout the appeal period, the severity, frequency, and duration of the Veteran's service-connected PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for hyperplasia of the prostate have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a disability rating in excess of 50 percent for service-connected PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1968; he served in combat in Vietnam during this period. This appeal comes before the Board of Veterans' Appeals (BVA or Board) from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service Connection for hyperplasia of the Prostate. In December 2017, the Veteran filed a claim for service connection for "hyperplasia of prostate Agent Orange." Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for a variety of diseases including prostate cancer. Presumptive service connection is warranted as a result of Agent Orange exposure is warranted if the requirements of Sec. 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). Prostate cancer may be presumed to have been incurred during active military service as a result of exposure to an herbicide agent if it is manifest to a degree of 10 percent at any time after the last date on which the veteran was exposed to Agent Orange/herbicide agents during active service. 38 C.F.R. § 3.307(a)(6)(ii). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also not satisfied, then the veteran's claim shall fail. 338 U.S.C. § 1113; 38 C.F.R. § 3.307(d). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The governing law provides that 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 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f). The evidence clearly establishes that the Veteran served in combat in Vietnam during the requisite period. He is presumed to have been exposed to herbicide agents during service. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not been afforded a VA examination with respect to his claim for service connection for hyperplasia of the prostate, and none is required. VA treatment records reveal that the Veteran was diagnosed with hyperplasia of the prostate in 2105. There is no indication in any of the VA medical records that this disorder is related to service or to herbicide exposure during service. There is no evidence that the Veteran is diagnosed with prostate cancer, and the VA medical records reveal negative prostate specific antigen (PSA) test results which are not indicative of the presence of prostate cancer. The Veteran has presented no evidence that his diagnosed hyperplasia of the prostate is in any way related to service or his presumed herbicide exposure during service; rather he merely wrote "Agent Orange" on his claim form without offering any evidence or theory of nexus. Accordingly, examination is not required. The Veteran's service treatment records do not reveal any evidence that the Veteran was diagnosed with, had symptoms of, or was treated for hyperplasia of the prostate during service. The evidence reveals that the disorder was diagnosed in 2015, almost half a century after service and there is no evidence indicating any link to service or to herbicide exposure during service. There is no evidence showing that the Veteran has prostate cancer, which would warrant service connection were the Veteran to have this disability. Accordingly, the preponderance of the evidence is against the claim and service connection for hyperplasia of the prostate is denied. 2. Increased Rating for PTSD. Service connection for PTSD was granted in a November 2012 rating decision, at which time a 50 percent rating was assigned, effective February 2012. A claim for an increased rating was received in December 2017. The Veteran's service-connected PTSD is rated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In March 2018, a VA Compensation and Pension examination of the Veteran was conducted. The diagnosis was PTSD which resulted in occupational and social impairment with reduced reliability and productivity. Symptoms noted to be present were irritability, panic attacks that occur weekly or less, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, and an inability to establish and maintain effective relationships. There was no evidence of delusions, perceptual abnormalities; his mood was even and congruent with affect. VA medical treatment records covering the appeal period have been obtained and reviewed. They show continued treatment and therapy sessions for the Veteran's service-connected PTSD. In all they show: intact judgment, appropriate affect, normal speech, logical and goal directed thought process, and no evidence of hallucinations, delusions, suicidal, or homicidal ideation. Therapy record do show an angry or irritable mood, and indicate that the Veteran's PTSD is chronic, but do not indicate a specific level of occupational and social impairment. The Board finds the currently assigned 50 percent rating appropriately compensates the Veteran for his symptoms. The evidence indicates the Veteran hs difficulty with irritability and angry mood, along with panic attacks that occur weekly or less, impaired judgment, difficulty in establishing and maintaining relationships. All the mental health evidence of record reveals he is oriented, had good hygiene, with few reported symptoms other than his self-isolation from relationships and irritable mood. He has consistently denied suicidal or homicidal ideation. He had no hospitalizations or emergency room visits for his psychiatric symptoms and denied any violent behaviors. As such, the evidence does not indicate the Veteran's PTSD is manifested by symptoms that more nearly approximate a 70 percent rating, such as speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene or inability to establish and maintain effective relationships. Additionally, the Board does not find that a 100 percent evaluation is warranted at any time during the appeal period. As noted, to warrant a 100 percent rating, the Veteran's symptoms must meet or more nearly approximate total occupational and social impairment. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability. Examining the Veteran's PTSD symptoms however, the Board concludes that the Veteran's symptomatology more nearly approximates the criteria for the currently assigned 50 percent rating. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a higher rating. As such, that doctrine is not applicable in the instant appeal, and his increased rating claim must be denied. REASONS FOR REMAND 1. Service connection for a right foot condition is remanded. 2. Service connection for a left foot condition is remanded. 3. Service connection for a left hand condition is remanded. The Veteran asserted claims for service connection for bilateral foot disorders, and a left hand disorder. His claim was not specific, and he was afforded examinations for the claimed disabilities in September 2018. These examination reports indicated that there was no diagnosis of any current disability of the hands or feet and that the Veteran had subjective symptoms of weakness, tingling, tremor and pain. However, as noted above, the Veteran did serve in Vietnam and is presumed to have been exposed to herbicide agents. His reported symptoms of tingling and pain in the hands and feet may be symptoms of peripheral neuropathy. As the Veteran has not been examined for neurologic disorders, this appears warranted based on the Veteran's reported symptoms and his service history. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The matters are REMANDED for the following action: 1. Schedule the Veteran for the appropriate neurologic / herbicide agents/Agent Orange examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the hands and feet, including his symptoms of pain and tingling are early-onset peripheral neuropathy, or had onset during service or are otherwise related to an in-service injury, event, or disease, to include herbicide exposure during service. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.