Citation Nr: 21073605 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-55 161 DATE: December 9, 2021 ORDER Entitlement to service connection for a left knee disability is dismissed. Entitlement to service connection for a right knee disability is dismissed. Entitlement to a disability rating in excess of 40 percent disabling for the Veteran's service-connected prostate cancer residuals is denied. Entitlement to service connection for ischemic heart disease (IHD) is denied. FINDINGS OF FACT 1. An April 2020 rating decision granted entitlement to service connection for the Veteran's claimed left knee disability. 2. An April 2020 rating decision granted entitlement to service connection for the Veteran's claimed right knee disability. 3. The competent and probative evidence demonstrates that throughout the period on appeal, the Veteran's prostate cancer residuals manifest in voiding dysfunction resulting in urine leakage not requiring absorbent material; and a daytime voiding interval between one and two hours with nighttime awakening to void between four to five times. 4. There was no currently diagnosed disability manifested by IHD or coronary artery disease (CAD) that was incurred in or caused by service, and any reported symptoms thereof did not rise to the level of functional impairment of earning capacity. CONCLUSIONS OF LAW 1. There is no remaining question of law or fact involving the claim of entitlement to service connection for a left knee condition, therefore, the appeal must be dismissed as moot. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. There is no remaining question of law or fact involving the claim of entitlement to service connection for a right knee condition, therefore, the appeal must be dismissed as moot. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for establishing entitlement to a disability rating in excess of 40 percent disabling for the Veteran's service-connected prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7528. 4. The criteria for establishing entitlement to service connection for IHD have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 and August 2016 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a video conference hearing before the undersigned in September 2019. A transcript of the hearing is of record. When this case was last before the Board in November 2019 it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with VA examinations regarding his claimed disabilities. Relevant examinations and opinions were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the November 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Dismissal The Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In an April 2020 rating decision, the RO granted the relief sought, namely, entitlement to service connection for a left knee condition and a right knee condition. As such, the Veteran's appeal for entitlement to service connection for these conditions is moot, as the benefits sought on appeal have already been granted. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991), see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Because there remains no case or controversy concerning whether the Veteran is entitled to the benefits sought, as the issue has been granted, these appeals are dismissed. 38 U.S.C. § 7105(d)(5). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Prostate CancerLegal Criteria The Veteran's prostate cancer is rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528, for malignant neoplasms of the genitourinary system or postoperative residuals. Diagnostic Code 7528 instructs to rate as voiding dysfunction or renal dysfunction, whichever is predominant. The criteria for voiding dysfunction and renal dysfunction are found in § 4.115a. Initially, the Veteran has not been shown to have renal dysfunction. As such, the Veteran's residuals are most appropriately rated under voiding dysfunction. Under 38 C.F.R. § 4.115a, voiding dysfunction can be rated according to urine leakage, frequency, or obstructed voiding. Regarding urine leakage, a 60 percent rating is warranted for requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. A 40 percent rating is warranted for requiring the wearing of absorbent materials which must be changed two to four times per day. A 20 percent rating for voiding dysfunction is warranted for requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Voiding dysfunction that manifests as urinary frequency warrants a 40 percent rating when daytime voiding intervals are less than one hour or awakening to void (nocturia) occurs five or more times per night. A 20 percent rating contemplates daytime voiding intervals between one and two hours, or nocturia occurs three to four times per night. A 10 percent rating is warranted when daytime voiding intervals are between two and three hours, or nocturia occurs twice per night. Id. Voiding dysfunction that manifests as obstructed voiding warrants a 30 percent rating when urinary retention requires intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology, such as hesitancy, slow or weak stream, decreased force of stream, with any one or combination of the following: (1) post-void residuals greater than 150 cc.; (2) uroflowmetry; markedly diminished peak flow rate, less than 10 cc./second; (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating is warranted when obstructive symptomatology with or without stricture disease requires dilatation one to two times per year. Analysis For the reasons addressed below, the Board finds that a disability rating in excess of 40 percent for the Veteran's service-connected prostate disability is not warranted during the period on appeal. The Veteran's VA treatment notes indicate that he has received treatment for his prostate condition throughout the period on appeal. Specifically, the Board notes a December 2018 Urology treatment note wherein the Veteran reported nocturia five times per night, a December 2019 urology treatment note where the Veteran reported nocturia four to five times per night, and a July 2020 urology treatment note wherein the Veteran reported nocturia four times per night and voiding every two hours. In response to the Board's November 2019 remand, the Veteran was provided with a January 2020 VA Prostate Cancer examination. The examiner noted that the Veteran had voiding dysfunction that did not cause urine leakage nor did it require the use of an appliance. The voiding dysfunction caused increased urinary frequency with a daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times. The Veteran's voiding dysfunction caused signs or symptoms of obstructed voiding with markedly decreased force of stream. The Veteran did not have a history of recurrent symptomatic urinary tract of kidney infections. The Veteran was next provided a November 2020 VA Prostate Cancer examination. The Veteran was noted to have a voiding dysfunction which caused urine leakage but did not require the wearing of absorbent material or the use of an appliance. The examiner noted that the Veteran had increased urinary frequency with a daytime voiding interval between one and two hours. The Veteran's voiding dysfunction caused signs of obstructed voiding with marked hesitancy, markedly slow stream, markedly weak stream, and markedly decreased force of stream. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections. After a review of the evidence, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal. The VA examination, as well as the VA treatment records, do not document any complaints of continual urine leakage or urinary incontinence requiring the use of an appliance or wearing absorbent materials which must be changed more than four times per day, as required for a 60 percent rating based on voiding dysfunction. Additionally, the board notes that the Veteran cannot obtain a rating higher than 40 percent under the criteria for urinary frequency or obstructed voiding. For the entire rating period on appeal, all possible diagnostic codes were considered, but the Veteran could not receive a higher disability rating for his prostate cancer condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Consideration has been given to assigning a staged rating; however, the evidence does not suggest that the severity has fluctuated during the period of this appeal, so a staged rating is not appropriate for this claim. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). IHD Pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Court recently held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The Board finds that the probative evidence of record does not document that the Veteran had a currently diagnosed heart disability, to include IHD or CAD. Further, any symptoms experienced either did not rise to compensable levels, result in impairment of functional earning capacity, or were already compensated under other applicable diagnostic codes. As such, service connection is not warranted on direct or presumptive bases for the claimed disabilities. Martinez-Bodon, supra. The Board has thoroughly reviewed the Veteran's medical records. The Veteran's service treatment records (STRs) do not contain any complaints, treatment, or diagnoses of any heart disabilities. A review of the Veteran's VA medical records indicates that CAD was placed on the Veteran's active problems list for medical treatment. The Veteran also testified during his September 2019 Board hearing that he was diagnosed with CAD. However, the Board also notes that there is a May 2015 medical note in the Veteran's file from a Dr. H.C. which indicates that the Veteran was mistakenly diagnosed with CAD due to a transcription error between medical records. Dr. H.C. indicated that she meant to put CAD under family history and did not mean to state that the Veteran actively had CAD himself and erroneously put CAD on the Veteran's active problem list. In response to the Board's November 2019 remand, the Veteran was afforded a January 2020 VA Heart Conditions examination. During this examination the VA examiner noted that the Veteran did not have a diagnosis of a current heart disability. The examiner continued that the Veteran was mistakenly diagnosed in 2012 due to an error in documentation and that his most recent transthoracic echocardiogram was unremarkable. The Board further notes a February 2020 VA Primary Care note wherein Dr. V.T. noted that the Veteran has never had any symptoms of CAD, that his last EKG was normal, that his last echocardiogram was completely normal, and that Dr. V.T. suspects the Veteran has no history of CAD. Based on the above, the Board does not find evidence of any heart disability at any time during the pendency of the appeal. Additionally, the Board finds that any compensable symptoms, do not rise to the level of compensable functional impairment. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserted that his claimed condition was related to his active service, such statements are of no probative value, as they lack the medical expertise to diagnose complex conditions or to render medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserted that he has a current condition, such statements are inconsistent with the medical evidence of record that does not document any relevant diagnoses at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Martinez-Bodon, supra. Based on the foregoing, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a heart condition disability. As the preponderance of the evidence is against the claims for service connection, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.