Citation Nr: 21023593 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-08 215 DATE: April 21, 2021 ORDER Entitlement to service connection for a digestive disorder, claimed as Barret's esophagus, is denied. Entitlement to a rating of 40 percent, but no higher, for residuals of prostate cancer residuals beginning May 1, 2017, is granted. REMANDED Entitlement to a disability rating higher than 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a disability rating higher than 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2017 to March 5, 2019, is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate beginning May 1, 2017, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the claimed digestive disorder began during active service, or is otherwise related to an in-service injury or disease. 2. For the entire appeal period, the Veteran’s prostate cancer, following the cessation of applicable therapy, is manifested by voiding dysfunction of urinary frequency of awakening to void sometimes five times a night. CONCLUSIONS OF LAW 1. The criteria for service connection for a digestive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Giving the Veteran the benefit of the doubt, for the entire appeal period, the criteria for a rating of 40 percent, but no higher, for prostate cancer residuals have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1963 to September 1965. In a January 2017 rating decision, the regional office (RO) decreased the evaluation for prostate cancer to 20 percent, effective May 1, 2017, and effectively denied a disability rating higher than 20 percent. The RO also found that SMC at the housebound rate was no longer warranted effective May 1, 2017. In a September 2017 rating decision, the RO also denied service connection for Barret’s esophagus and denied a disability rating higher than 10 percent for peripheral nerves of each lower extremity, under Diagnostic Code 8520. In an October 2017 notice of disagreement (NOD), the Veteran disagreed with the denial of a disability rating higher than 20 percent for prostate cancer and the reduction of SMC effective January 1, 2017. In October 2017, the Veteran also disagreed with the denial of service connection for bilateral neuropathy and service connection for Barrett’s esophagus. The Board notes that neither the Veteran nor his attorney disagreed with the reduction of his prostate cancer disability rating. As such, the only issue before the Board is whether an increased rating is warranted. Also, although the Veteran disagreed with the “denial of service connection” for bilateral neuropathy, he is already service connected for that disability. In a January 2019 statement of the case (SOC), the RO accepted that NOD as one for an increased rating for bilateral peripheral neuropathy. The Board will also consider the issue as one for an increased rating for the already service-connected bilateral peripheral neuropathy. As noted in the REMAND below, the current ratings of the Veteran’s right and left peripheral neuropathy are unclear as to whether he currently has 20 percent ratings for each extremity. Although the Board is currently characterizing the issues as one of disability ratings higher than 10 percent each extremity, the Board is not making any judgment as to whether or not 20 percent ratings have been granted during this appeal. In January 2021, the Veteran withdrew his prior request for a hearing before a Veterans Law Judge. The Board notes that VA received private medical records from the Veteran’s attorney in August 2019 that are relevant to the current claim. The Veteran did not waive this evidence. However, the Veteran’s substantive appeal was received on or after February 2, 2013. As such, the evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative requests in writing that the AOJ initially review such evidence. Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). As such, the Board will review the submitted evidence. The Board further notes that to the extent that additional VA medical records have been obtained since the January or February statement of the case (SOC), such records are generally duplicative of other evidence of record or not relevant to the claims decided herein. As such, the Veteran is not prejudiced by the Board’s review of such evidence. To the extent that additional evidence is relevant and non-duplicative, the Board is remanding the only issues implicated - entitlement to higher ratings for peripheral neuropathy of the lower extremities. The Board notes that the Veteran is already in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). As explained in further detail below and as reflected in the characterization of the appeal (on the title page), the Board considers the matter of the Veteran’s entitlement to a TDIU due to prostate cancer residuals as a component of the claim for a higher rating for that disorder, for the period from May 1, 2017 to March 5, 2019. See Rice v. Shinseki, 22 Vet. App. 447 (2009 Entitlement to service connection for a digestive disorder, claimed as Barret's esophagus. The Veteran generally asserts that his Barrett’s esophagus is related to his period of active service. Specific argument in support of this appeal has not been submitted. In his August 2017 VA Form 21-526EZ (Application for Disability Compensation), the Veteran indicated that he was applying for VA benefits related to Barrett’s esophagus. The application did not contain any additional detail with regard to his claimed Barrett’s esophagus. In a subsequent August 2017 correspondence, the Veteran reported Barrett’s esophagus was “present during active service but wasn’t addressed.” The Board notes that the Veteran has not indicated why he believes that it was present during service or what symptoms, if any, he believes began during service or have been chronic since that. Neither the Veteran nor his attorney has provided any further argument in support of the claim. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of various digestive disorders, including Barrett’s esophagus and gastroesophageal reflux disease (GERD), the preponderance of the evidence is against finding that any such digestive disorder began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran has not reported that he has had symptoms in service or what symptoms he believes are part and parcel of the claimed disorder. Moreover, the Board finds that while the Veteran may be competent to report on symptoms in service, he has not done so, and any such reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. Specifically, in his report of medical history on separation from service in September 1965, he specifically denied any ear, nose, throat trouble, as well as, any stomach, liver, or intestinal problems and denied frequent indigestion. Service treatment records are also negative for any complaints of, or treatment for, symptoms of a digestive disorder. The evidence of record does not show a diagnosis for any such disorder until years after his separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Following the Veteran’s 1965 separation from service, the record is silent for any complaints of, or treatment for, a digestive disorder for several decades. While the Veteran believes a digestive disorder is related to service in some way, the Board reiterates that the preponderance of the evidence weighs against findings that it has been present since service. Indeed, one of the earliest post-service medical records associated with the claims file is a July 2005 VA record establishing VA care. At that time, the Veteran did not report any digestive problems, the closest being his blood sugar in association with his diabetes mellitus (which is already service connected). He reported no illnesses other than his diabetes mellitus. Diagnoses noted at that time did not include a digestive disorder. Subsequent VA medical records in the next few years were silent for any complaints of, or treatment for, a digestive disorder. A February 2009 VA medical record did note a family history of malignant neoplasm of gastrointestinal tract. At that time, the Veteran complained of occasional heart burn for 2-3 days after eating pizza and the physician prescribed medication for GERD. None of the VA medical records include an etiology opinion as to the causation of the claimed digestive disorder. Private medical records do not document a diagnosis of a digestive disorder until decades later, including in 2015. A May 2015 record from OSU Wexner Medical Center noted diagnoses of nausea with vomiting, flatulence, abdominal pain, epigastric, other specified disorders of esophagus, and unspecified disorder of esophagus. Although multiple additional private medical records document ongoing treatment for various digestive disorders, none of them provide an etiology opinion as to any disorder being chronic for decades or due to service. Indeed, a more recent September 2018 private medical record, from OSU East, indicated there was no evidence of Barrett’s esophagus at that time. Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the appellant’s military service or another service-connected disability but there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the current case, there is no probative evidence that the disability may be associated with the Veteran’s service. As previously noted, he has not indicated any credible chronicity of symptoms. Also, there is no medical evidence indicating that the disorder has been present since the 1960s and it first diagnosis of record is from almost 50 years later. There is also no medical evidence indicating that it developed due to service. Furthermore, the Veteran’s mere conclusory generalized lay statement that service event or illness caused his current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Board finds that a VA examination and/or etiology opinion is not necessary to decide the claim for service connection for a digestive disorder, to include Barrett’s esophagus. In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of a digestive disorder did not occur until several decades after service. The probative evidence shows that the Veteran’s disorder had its onset several years after service, and there is no competent evidence to link the Veteran’s digestive disorder with an incident of service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a digestive disorder is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to a disability rating higher than 20 percent for prostate cancer residuals. The Veteran was previously in receipt of a 100 percent disability rating, from July 2, 2014 to May 1, 2017. From May 1, 2017, he has been in receipt of a 20 percent disability rating. The Veteran’s claim is one for a disability rating higher than 20 percent. He has not provided any evidence or argument as to why he believes a higher rating is warranted. As explained in the Introduction, the question of whether the reduction of the rating was proper was not appealed by the Veteran or his attorney and that matter is not before the Board. He completed radiation therapy in December 2014 and androgen deprivation therapy in March 2015, per a September 2015 VA examination. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed based on lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis is undertaken considering the possibility that different ratings may be warranted for different time periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.115b, Diagnostic Code 7528, a 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, which is predominant. The Veteran appears to have been initially granted a 100 percent disability rating and following the cessation of therapeutic procedure the RO continued that 100 percent disability rating for several months past the end of such therapy. As noted in Diagnostic Code 7528, the residuals are rated on voiding dysfunction or renal dysfunction, whichever is predominant. He is currently rated at 20 percent for voiding dysfunction. [Impotence secondary to prostate cancer is separately compensated, as reflected by the award of service connection for erectile dysfunction, and SMC for loss of use of a creative organ and is not for consideration herein.] The Board will consider possible ratings for the Veteran under both renal dysfunction and voiding dysfunction and rate him based on the highest rating for which he would qualify. The Veteran is currently in receipt of a 20 percent disability rating for voiding dysfunction for urinary frequency, per the January 2017 rating decision. Voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. A maximum 40 percent disability rating for urinary frequency would require daytime voiding interval less than one hour or awakening to void five or more times per night. There is no evidence of such urinary frequency in the VA medical records, or in the September 2015 and February 2019 VA examination reports. The February 2019 VA examiner noted daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times, consistent with a 20 percent disability rating. The Board notes, however, the private medical records show increased night voiding, starting in a March 15, 2017 private medical record by Dr. S.C. Prior to that record, the Veteran’s reported nocturia were not over four times a night, including in the records from April 2015, July 2015, February 2016, and July 2016. Although the report by Dr. S.C. differs from the February 2019 VA examination, the Board will grant the Veteran the benefit of the doubt as to his urinary frequency. As the period on appeal is from May 1, 2017, the Board finds that a 40 percent disability rating from that date is warranted. A 40 percent rating is the maximum rating possible for urinary frequency. As the 40 percent disability rating for urinary frequency granted is higher than the maximum 30 percent disability rating possible for obstructed voiding, the Board finds that rating the Veteran under obstructed voiding is not warranted. The Board also notes that there is no evidence of intermittent or continuous catheterization in the VA medical records, private medical records, or the VA examinations of September 2015 and February 2019. For voiding dysfunction based on urine leakage, the next higher and maximum 60 percent rating is warranted for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. There is no evidence of such leakage or use of absorbent materials of two or more times a day for a disability rating higher than 40 percent in the VA medical records, private medical records, or the VA examinations of September 2015 and February 2019. The September 2015 VA examiner noted that the Veteran did not require the wearing of absorbent material. The February 2019 VA examiner noted that he required absorbent material when he goes to church or to the movies and otherwise out. In a May 2019 private medical records, Dr. S.C. reported that the Veteran reported increased urinary incontinence and had one large episode while at a restaurant. The record does not indicate the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. As such, a disability rating higher than 40 percent on this basis is not warranted. The next higher rating for renal dysfunction is a 60 percent rating for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling. An 80 percent evaluation is warranted for 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. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. There is no evidence of renal dysfunction in the VA medical records, private medical records, or the VA examinations. The September 2015 and February 2019 VA examination specifically found no renal dysfunction. As such, a rating under renal dysfunction is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Giving the Veteran the benefit of the doubt, the Board finds that a 40 percent disability rating, and no higher, for residuals of prostate cancer is granted. REASONS FOR REMAND Entitlement to: (1) a disability rating higher than 10 percent for peripheral neuropathy of the left lower extremity, (2) a disability rating higher than 10 percent for peripheral neuropathy of the right lower extremity, (3) a TDIU from May 1, 2017 to March 5, 2019 and (4) SMC at the housebound rate from May 1, 2017 are remanded. The record reflects that the Veteran underwent a relevant VA examination in April 2019, but that the RO has not had the opportunity to review the new evidence and readjudicate the claims since the January 2019 SOC. Because this evidence was added to the claims file by VA, and not submitted by the Veteran or his accredited representative, the Veteran cannot waive initial AOJ review of this evidence. See 38 U.S.C. § 7105(e); see also VA Fast Letter 14-02 (May 2, 2014). The Board will therefore remand this issue for AOJ consideration of the April 2019 VA examination report and all other VA medical records since associated with the claims file. The Board also notes that the record is unclear as to whether or not the RO granted 20 percent disability ratings for each lower extremity, effective March 11, 2019. No rating decision appears to have been issued for such grants, but such higher ratings are noted on the rating decision code sheets. The RO should clarify whether any such grants were made and take any appropriate actions. Finally, because a decision on the peripheral neuropathy claims could significantly impact a decision on the issues of TDIU and SMC, the issues are inextricably intertwined. A remand of the claims for TDIU and SMC at the house bound level is required. The matters are REMANDED for the following actions: 1. The AOJ should clarify the Veteran’s rating(s) for peripheral neuropathy of each lower extremity – to include noting if any higher rating(s) have been granted. 2. The AOJ should perform any additional development deemed warranted. After any necessary development has been accomplished, consider the relevant evidence associated with the claims file since the January 2019 SOC, to include the April 2019 VA examination. 3. The AOJ should then re-adjudicate the remanded claims, to include the claims for a TDIU from May 1, 2017 to March 5, 2019 and SMC at the housebound rate from May 1, 2017. If a claim is not fully granted, the issuance of a supplemental statement of the case (SSOC) is required. See 38 C.F.R. § 19.31. CHRISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.