Citation Nr: 21011051 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-35 925 DATE: February 26, 2021 ORDER Service connection for diverticulitis/diverticulosis is denied. Service connection for low testosterone is denied. Service connection for prostate cancer, to include secondary to erectile dysfunction, is granted. Service connection for colovesical fistula is granted. Service connection for suprapubic colostomy is granted. Service connection for anemia is granted. REMANDED Service connection for perianal condition, to include skin tags, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a currently diagnosed diverticulitis. 2. Low testosterone is a laboratory finding and not a disease or disability under VA law and regulations. 3. Resolving all reasonable doubt in his favor, the Veteran’s prostate cancer was aggravated beyond its natural progression by his service-connected erectile dysfunction. 4. Resolving reasonable doubt in the Veteran’s favor, his colovesical fistula is proximately due to his service-connected prostate cancer. 5. Resolving reasonable doubt in the Veteran’s favor, his suprapubic colostomy is proximately due to his service-connected prostate cancer. 6. Resolving reasonable doubt in the Veteran’s favor, his anemia is proximately due to his service-connected prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for diverticulitis/diverticulosis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. A distinct disability manifested by low testosterone was not incurred or aggravated inservice. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for prostate cancer, to include secondary to erectile dysfunction, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for colovesical fistula are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for suprapubic colostomy are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for anemia are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1961 to May 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision. The Board remanded the claims for further development in May 2018. The Board finds that there has been substantial compliance with the remand directives for all issues except for the issues of a perianal condition which will be subsequently discussed. Stegall v. West, 11 Vet. App. 268 (1998). At the outset, the Board notes evidence contained in the claims file documents that the Veteran’s service department records were damaged and destroyed by fire. As such, the Veteran’s service treatment records are unavailable. As to the unavailable service treatment records, the Board recognizes that VA’s duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board notes, however, the law does not lower the legal standard for proving a claim for service connection, rather it increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from the missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Diverticulitis The Veteran contends that he has a current gastrointestinal disability that began during her active service or is otherwise related to such service. The evidence shows the Veteran was diagnosed with diverticulitis in September 2011. Therefore, a current disability is established. However, the preponderance of the evidence weighs against finding that the Veteran’s current diverticulitis began during service or is otherwise related to an in-service injury, event, or disease. The Veteran underwent a VA examination in May 2019 when the VA examiner stated that it was less likely than not that the Veteran’s diverticulitis was incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner stated that there is no supporting evidence, other than the September 2011 note diagnosing diverticulitis, showing any continuity of care. Further, the examiner noted that the first notation of diverticulitis occurred in 2011, over 48 years since the Veteran left active duty service. Therefore, based on the above, the examiner found that the diagnosed diverticulitis is less likely than not related to the Veteran’s service. To the extent that the Veteran has asserted such a connection, he is not competent to provide a competent medical opinion because the issue is medically complex and requires knowledge of the structure of the gastrointestinal system and associated medical conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran’s claim for service connection is denied. Low Testosterone The Veteran claims entitlement to service connection for low testosterone. The record shows that the Veteran is already service connected for erectile dysfunction. He also receives special monthly compensation for the loss of use of a creative organ. As stated previously, the Veteran’s service treatment records were likely destroyed in a fire at the National Personnel Center in St. Louis, MO in 1973. However, post-service medical records do, however, confirm that the Veteran has had low testosterone levels. The above notwithstanding, low testosterone is not a disability in and of itself for which VA compensation benefits are payable. While low testosterone may be a sign of a separate disability, standing alone it is a laboratory finding. Laboratory findings are not disabilities in and of themselves for VA purposes. See generally, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). The term “disability” for VA purposes refers to a condition which has been deemed to result in impairment to the claimant’s earning capacity. See 38 C.F.R. § 4.1. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this instance, there is no indication of an identifiable disorder due to low testosterone with such an impact upon earning capacity. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see 38 U.S.C. § 1110. Nothing in the medical evidence presently on file shows the Veteran has a current chronic disability manifested by low testosterone that is not already service connected. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine does not apply. 38 U.S.C. § 5107(b). Therefore, the claim for service connection must be denied. Prostate Cancer The Veteran is presently service connected for erectile dysfunction. Additionally, the Veteran underwent a VA examination in August 2017. This examination confirmed a diagnosis of prostate cancer. Therefore, the first element of service connection has been met. In addition, the Veteran underwent another VA examination in September 2020 to determine the etiology of the Veteran’s prostate cancer. The examiner noted that the Veteran’s service treatment records were destroyed in a fire at the National Personnel Center in St. Louis in 1973. As a result, the examiner was not able to review any treatment records from while the Veteran was in-service. However, the examiner focused on the Veteran’s competent claims that he was given testosterone supplements as a result of his service-connected erectile dysfunction. The examiner stated that it has been found that giving testosterone to men promotes prostate cancer growth. Therefore, the examiner concluded, that the testosterone supplements given to the Veteran likely promoted prostate growth resulting in prostate cancer. This finding establishes that the Veteran’s prostate cancer was aggravated beyond its normal progression by the medication used to treat his service-connected erectile dysfunction. As a result, service connection for prostate cancer on a secondary basis is warranted. Colovesical Fistula, Suprapubic Colostomy, and Anemia The Veteran underwent separate VA examinations in August 2017 regarding the etiology of his colovesical fistula, suprapubic colostomy, and anemia. Regarding the Veteran’s colovesical fistula and suprapubic colostomy, the August 2017 examiner found that as there were no service treatment records for review, they could not speculate to be incurred by or during military service. However, the examiner noted that colovesical fistula and suprapubic colotomy is secondary to the Veteran’s prostate cancer radiation treatment. Regarding the Veteran’s anemia, the August 2017 VA examination stated simply that the examiner could not be speculated to be incurred by or during the Veteran’s military service. In May 2019, another opinion was obtained regarding the etiology of the Veteran’s anemia. The May 2019 opinion echoed the conclusion of the August 2017 opinion. However, the May 2019 opinion went further, stating that the Veteran’s anemia was likely due to his prostate cancer. Therefore, as the Veteran is service-connected for prostate cancer, and there has been a showing that the Veteran’s colovesical fistula, suprapubic colostomy, and anemia are the result of the Veteran’s prostate cancer, service connection on a secondary basis is warranted. REASONS FOR REMAND Perianal condition, to include skin tags In May 2018, the Board remanded the claim for a new examination to determine the etiology of the Veteran’s previously diagnosed perianal skin tags. To date, there is no opinion of record regarding the Veteran’s diagnosed skin tag condition. Remand is necessary to obtain an opinion that addresses all directives in the previous remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule a VA examination with an examiner to determine the nature and etiology of any diagnosed skin tag condition. The examiner must review the claims file and should note that review in the report. Based on review of the entire record, the examiner should provide an opinion regarding the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any diagnosed skin tag condition had its onset in service, or is etiologically related to service or any event, injury, or disease during service. (b.) Is it at least as likely as not that any diagnosed skin tag condition is due to or the result of or aggravated by service-connected disabilities? A complete rationale for all opinions should be provided. The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, Associate 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED