Citation Nr: 21022723 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-14 479 DATE: April 19, 2021 ORDER A 60 percent rating, but no more, for residuals of prostate cancer from February 1, 2015, to October 9, 2019, is granted, subject to the payment of monetary benefits. A rating in excess of 60 percent for residuals of prostate cancer since October 9, 2019, is denied. Service connection for a skin disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from March 1967 to March 1970, including service in Vietnam. 2. From February 1, 2015, to October 9, 2019, residuals of prostate cancer were manifested by voiding dysfunction requiring the wearing of absorbent materials that were changed more than four times per day. 3. Throughout the period on appeal, residuals of prostate cancer residuals were not manifested by persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health. 4. The Veteran was diagnosed with acne vulgaris and subcutaneous cysts in service; the current diagnosis of dermatitis is not causally or etiologically related to service or to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, but no more, for residuals of prostate cancer from February 1, 2015, to October 9, 2019, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.115a, 4.115b; Diagnostic Code (DC) 7528 (2020). 2. The criteria for a rating in excess of 60 percent for residuals of prostate cancer since October 9, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.115a, 4.115b; DC 7528 (2020). 3. A skin disorder was not incurred in service nor is it due to herbicide exposure. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 2018, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. In February 2019, the Board remanded the appeal for additional development. The Judge who conducted the hearing is no longer at the Board. The Veteran was offered another hearing but did not respond. The case has now been returned to the Board for further review. Increased Ratings for Prostate Cancer Residuals Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Prostate cancer is rated under DC 7528. A 100 percent rating is warranted for veterans undergoing therapeutic treatment. A note to DC 7528 states that the 100 percent rating shall continue for six months following cessation of treatment. Any dysfunction remaining after cessation of treatment is to be rated based on voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. The residuals of prostate cancer were rated at 100 percent disabling until February 1, 2015, and then rated at 40 percent. Effective October 9, 2019, the rating was increased to 60 percent. As such, the period on appeal is from February 1, 2015, to the present. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. The Veteran’s residuals of prostate cancer already are rated at 40 percent disabling. The highest rating for urinary frequency is 40 percent and the highest rating for obstructive voiding is 30 percent. Accordingly, there is no basis for a higher rating under either of those criteria and they will not be discussed further. A rating in excess of 40 percent disabling based on renal dysfunction requires: • constant albuminuria with some edema; or a definite decrease in kidney function; or hypertension at least 40 percent under DC 7101 (60 percent). Turning to the medical evidence, at a February 2015 VA examination, the Veteran reported that his energy level was good, describing himself as going all the time, with no recent changes in weight or appetite. The examiner diagnosed residuals of prostate cancer and found that the Veteran did not have any renal dysfunction due to the disability. A review of the clinical records reflects no documentation of albuminuria. In June 2018, the Veteran’s albumin level was at 4.1g/dL (normal range noted as 3.4g/dL to 5.0g/dL). In November 2019, the albumin level was at 4.3g/dL. Therefore, the medical evidence does not reflect elevated albumin levels. In addition, the Veteran denied experiencing edema in November 2015 and June 2018; however, very mild edema was noted in August 2018. Clinical records reflect no evidence of edema in May 2019, June 2019, or December 2019. Therefore, the medical evidence does not support persistent edema. Next, laboratory findings have been normal. Specifically, the evidence reflects that a normal blood urea nitrogen (BUN) level for males is between 8mg/dL and 26mg/dL. In October 2017, the Veteran’s BUN level was 14mg/dL, in June 2018 it was 11mg/dL, and in August 2018 it was 12mg/dL. As all these levels are within the normal range, the medical evidence does not support a higher rating. As to kidney function, the medical records do not contain notations of concerns regarding any definite decrease or possible impairment of kidney functions. To that end, the creatinine levels have repeatedly been shown within the normal range of 0.7mg/dL to 1.2mg/dL. Of note, in October 2017, the creatinine level was 0.8mg/dL, and in August 2018, it was 0.9mg/dL. As to hypertension, a 40 percent rating for hypertension under DC 7101 requires medical evidence of a diastolic pressure that is predominantly measured at 120 or more. The Veteran’s is blood pressure readings consistently have fallen well below this threshold. For example, in December 2015 it was 122/79, in January 2016 it was 131/79, in October 2017 it was 134/86, and in November 2019 it was 165/101. The clinical records reflect that he was sometimes noncompliant with the medications, as a VA clinician explained in April 2019, when he took his medications, the blood pressure was controlled. The highest blood pressure reading of record was in August 2018, at which time it was 149/112. Notably, even a reading of 112 diastolic pressure is below the threshold of 120 needed to establish a 40 percent rating for hypertension under DC 7101. Therefore, the medical evidence does not support a rating in excess of 40 percent under any of the DC 7528 criteria for renal dysfunction. Turning to a higher rating based on urine leakage, to warrant a higher rating under DC 7528, the evidence must show: • the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day (60 percent). This is the highest rating available under this diagnostic code. The Veteran has been assigned a 60 percent rating effective October 9, 2019. The Board will focus on the rating prior to that period. The medical evidence is conflicting on this point. In February 2015, the VA examiner found that the Veteran did not require the use of an appliance and, though it required wearing absorbent materials, they needed to be changed only 2 to 4 times per day. On the other hand, as noted in another February 2015 VA examiner’s opinion addressing another claim, a VA urologist had found in September 2014 that the Veteran was experiencing severe urinary incontinence and using over 7 pads per day to avoid urine leakage. The Veteran has consistently asserted that his symptoms included the wearing of absorbent materials that must be changed more than 4 times per day, which he reported as early as March 2015. At the June 2018 Board hearing, he testified that he changed incontinence pads inserts between five and seven times a day, changes adult diapers between two and three times a day, and had to order cases of pads from VA because he used 200 pads a month or more. He is competent to report his symptoms of voiding dysfunction and his efforts to avoid urine leakage because this requires only personal knowledge as it comes to him through his senses. And because his accounts are internally consistent and consistent with the medical evidence that has been credited, great probative weight is attached to his testimony on this issue, further supporting a 60 percent rating for the entire time on appeal. Therefore, resolving reasonable doubt in the Veteran’s favor, a 60 percent rating for the residuals of prostate cancer is warranted for the period from February 1, 2015, to October 9, 2019. To this extent, the appeal is granted. As to the issue of whether a rating in excess of 60 percent is warranted for any time on appeal, the medical evidence does not support the claim. As mentioned, under the DC 7528 criteria for voiding dysfunction, the highest available rating for voiding dysfunction involving obstructed voiding is 30 percent, the highest available rating for voiding dysfunction involving urinary frequency is 40 percent, and the highest available rating for voiding dysfunction involving urine leakage is 60 percent. Therefore, there is no basis for a rating in excess of 60 percent for prostate cancer residuals under any of the DC 7528 criteria regarding voiding dysfunction. As to a higher rating based on renal dysfunction, the evidence requires: • persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion (80 percent). As discussed above, the medical evidence does not support a finding of renal dysfunction based on the laboratory findings. Further, the Veteran has not maintained and the evidence does not show that he has experienced generalized poor health due to prostate cancer residuals. Therefore, the medical evidence does not support a rating in excess of 60 percent. The Board has also considered the Veteran’s lay statements and testimony in addressing a higher rating. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s prostate residuals has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion. The lay evidence as well as the medical evidence has been considered in granting a higher rating prior to October 9, 2019, and denying the appeal since. Service Connection for a Skin Disorder Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the medical evidence, as to a current disorder, the Veteran has been diagnosed with atopic dermatitis, contact dermatitis, seborrheic dermatitis, folliculitis, tinea manus, and tinea pedis. Therefore, the first element of service connection has been met. As to an in-service incurrence, the service treatment records (STRs) reflect that the Veteran was diagnosed with “mild ichthyosis (dry skin)” mostly on his legs at the time of enlistment. He also self-reported boils but no boils were noted at the enlistment examination. Therefore, to the extent that a skin disorder preexisted service, it was limited to dry skin. As such, he entered sound as to all other skin disorders. In March 1967, shortly after he entered active duty, the Veteran underwent a dermatology consultation. It was noted that he had a lifelong history of dry skin and food allergies which produced generalized pruritis. He also experienced a sunburn on the ears and face which was resolving. The diagnoses were mild atopic dermatitis and resolving sunburn. STRs reflect on-going treatment for a variety of skin disorders including boils on his back (also described as subcutaneous cysts), cystic acne on the back (also described as acne vulgaris), tinea pedis, and a furuncle of the left groin. In an October 1969 medical record, the clinician diagnosed acne vulgaris, cystic, and tinea pedis and noted that the Veteran had a history of mild acne since age 12 mainly on the face, which developed into acne on the back during active duty in Puerto Rico, flared during service in Vietnam, and was nonresponsive to topical and systemic therapy. He was returned stateside, hospitalized, and eventually returned to duty. At the March 1970 separation examination, the skin was found to be clinically normal after months of treatment. A Reserve examination dated in April 1972 reflected minimal eczema but no other skin abnormalities. Nonetheless, as multiple skin disorders were noted in service, the second element of service connection has been met. As to a medical nexus, the Veteran filed a claim for benefits in December 2014. He asserted, among other things, that the cysts and boils noted in service were related to herbicide exposure. In the alternative, he suggests that a skin disorder preexisted service and was aggravated by service. In a February 2015 VA examination, the Veteran described a skin rash for over 20 years since his time in Vietnam. The examiner reviewed and outlined the various skin complaints in the STRs, noted post-service treatment for a skin rash on the face, scalp, arms, chest, and back, and recorded a past medical history as provided by the Veteran. The examiner noted that a prior dermatology note diagnosed dermatitis of unclear etiology with a possibility of an autoimmune or connective tissue disease. After a physical examination, the examiner diagnosed dermatitis. As to a medical nexus, the examiner found that it would be speculative to find that the current skin was a continuation of the skin condition during service as they are two different conditions. The examiner remarked that the Veteran clearly had an ongoing skin condition but the medical records did not provide a diagnosis of acne vulgari but rather adult atopic dermatitis of unclear etiology. A reasonable reading of the opinion is that the in-service acne vulgaris (also characterized as cystic acne) was not related to the current diagnosis of adult atopic dermatitis. To that extent, the medical opinion does not support the claim. A dermatology clinical note dated approximately a week after the February 2015 VA examination, also reflected a diagnosis of dermatitis of the face, neck, upper chest, and shoulders of unclear etiology, present for over 20 years. A punch biopsy of the right forearm showed subacute spongiotic dermatitis with eosinophils with a differential diagnosis of allergic contact dermatitis, atopic dermatitis, and eczematous medication reaction. In addition, diagnoses of stucco keratosis, boils/folliculitis, and seborrheic dermatitis were also noted. In a January 2017 VA medical opinion, the clinician reviewed the STRs and considered multiple entries describing the Veteran’s various in-service skin disorders, as well as the post-service treatment records. The clinician was specifically asked to consider whether the in-service reference to mild atopic dermatitis in service was a cause or progression of the currently-diagnosed adult atopic dermatitis. The clinician found that the dry skin noted at enlistment, with lichenification elbows and pitting nails, was evidence of a longstanding skin disorder. The clinician reflected that it was diagnosed as atopic dermatitis 10 days later and would have been the same pre-existing condition. The clinician concluded that it was less likely as not that Veteran's currently-diagnosed atopic dermatitis was not caused by or the result of service. Reading the medical evidence in tandem, particularly the February 2015 VA examination and the February 2015 dermatology findings, it is reasonable to conclude that the Veteran’s current skin disorders, primarily diagnosed as contact dermatitis, seborrheic dermatitis, and atopic dermatitis, are not related to the in-service treatment for what was primarily described as boils (subcutaneous cysts) and acne vulgaris (cystic acne). The February 2015 examiner related that in-service acne vulgaris was a distinct disorder from the currently-diagnosed dermatitis. Further, both the February 2015 examiner and the February 2015 dermatologist found that the etiology of the Veteran’s skin disorder was unknown. Although the February 2015 dermatologist did not specifically indicate that the medical records were reviewed, the February 2015 examiner reviewed the records, including the STRs and post-service treatment records, and considered the Veteran’s statements as to in-service complaints but found no relationship between the in-service complaints and current skin disorders as the current disorder was of an uncertain etiology. The uncertainty of the etiology cannot support the conclusion that it must have been related to service. It is also noted that there is no medical evidence establishing such a link. These findings are consistent with the contemporaneous service records which showed that the skin symptoms in service were primarily of the back. The Veteran’s current skin disorders have been identified as to the face, neck, upper chest, and shoulders. Not only are the diagnoses different but the areas affected are also different. This evidence weighs against a medical nexus. To the extent that the Veteran was also diagnosed with subcutaneous cysts, a furuncle left groin, and minimal eczema, those disorders are not currently shown. To the extent that he was diagnosed with tinea pedis in service, the medical evidence does not establish a nexus between the in-service diagnosis some 50+ years ago and current complaints. Further, tinea pedis was not shown to be a chronic disorder as the service separation examination was negative for the disorder. To the extent that the Veteran claims that the current skin disorders, diagnosed as variously types of dermatitis, are related to herbicide exposure, presumptive service connection is only warranted for those disorders listed in 38 C.F.R. §§ 3.307/3.309. As dermatitis is not on the list of disorder subject to presumptive service connection based on herbicide exposure, service connection on this basis is not warranted. As to service connection on a direct causation basis, the Veteran attributes the skin disorders to service in Vietnam but an October 1969 in-service assessment noted that acne first developed on his back when he served in Puerto Rico, prior to his service in Vietnam. This weighs against a finding that acne vulgaris was related to herbicide exposure on a direct causation basis under Combee. In addition, no medical professional has established such a relationship. The Board has considered the Veteran’s lay statements and sworn testimony that that his skin disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel Edward P. Vrtis 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.