Citation Nr: 21026941 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-23 415 DATE: May 4, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for residuals of prostate cancer is granted from February 26, 2013 to September 27, 2019. Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer from September 27, 2019 is denied. Entitlement to a separate noncompensable rating for residual prostate cancer scar is granted from February 26, 2013. Entitlement to service connection for a left lower extremity neurological disorder is denied. Entitlement to service connection for a right lower extremity neurological disorder is denied. REMANDED Entitlement to an initial compensable rating for erectile dysfunction is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. From February 26, 2013 to September 27, 2019, the Veteran's prostate cancer residuals have been manifested by voiding dysfunction resulting in urinary frequency with awakening to void three to four times per night. 2. The Veteran's prostate cancer residuals have not been manifested by urinary frequency with a daytime voiding interval of less than one hour, awakening to void five or more times per night, urine leakage requiring the wearing of absorbent materials that must be changed two to four times per day, obstructed voiding, or renal dysfunction at any point during the appeal period. 3. The Veteran's residual prostate cancer scar is less than 144 square inches and has not been associated with any underlying soft tissue damage, pain, instability, or loss of function at any point during the appeal period. 4. The Veteran's left lower extremity neurological disorder did not have its clinical onset in service or within one year of separation from service, and is not otherwise related to active duty, to include as a result of presumed herbicide agent exposure therein. 5. The Veteran's right lower extremity neurological disorder did not have its clinical onset in service or within one year of separation from service, and is not otherwise related to active duty, to include as a result of presumed herbicide agent exposure therein. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 20 percent rating, but no higher, for residuals of prostate cancer are met from February 26, 2013 to September 27, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer from September 27, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, DC 7528. 3. The criteria for entitlement to a separate noncompensable rating for residual prostate cancer scar are met from February 26, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7802. 4. The criteria for entitlement to service connection for a left lower extremity neurological disorder are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for a right lower extremity neurological disorder are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1965 to August 1969, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in November 2018. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to an initial 20 percent rating, but no higher, for residuals of prostate cancer is granted from February 26, 2013 to September 27, 2019. 2. Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer from September 27, 2019 is denied. The Veteran's prostate cancer residuals are rated pursuant to DC 7528, which pertains to malignant neoplasms of the genitourinary system, and provides a 100 percent rating. DC 7528 notes that 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). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage requiring the wearing of absorbent materials that must be changed less than two times per day warrants a 20 percent rating. A 40 percent rating requires the wearing of absorbent materials that must be changed two to four times per day. A maximum 60 percent rating requires 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. Urine frequency resulting in a daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating. A daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval of less than one hour; or, awakening to void five or more times per night warrants a maximum 40 percent rating. 38 C.F.R. § 4.115a. For obstructed voiding, a 10 percent rating is warranted for marked obstructive symptomatology (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 10cc/sec), (3) recurrent urinary tract infections secondary to obstruction, (4) stricture disease requiring periodic dilatation every 2 to 3 months. A maximum 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. By way of background, a November 2014 rating decision awarded service connection for residuals of prostate cancer and assigned a 10 percent rating, effective February 26, 2013. An August 2020 rating decision increased the rating to 20 percent, effective September 27, 2019. The appeal period before the Board is from the effective date of service connection, or February 26, 2013. From February 26, 2013 to September 27, 2019, a 20 percent rating is warranted for the Veteran's prostate cancer residuals. In this regard, an August 2013 private treatment record shows that the Veteran had urinary urgency and urinated more than two times overnight and more than eight times in a 24 hour period. Additionally, the Veteran reportedly had a colonoscopy three weeks after being examined by VA in August 2014 and learned that he was beginning to develop diverticulitis from not consuming enough liquids. See May 2016 VA Form 9. Since then, he reported increasing his fluid intake, which caused him to urinate three to four times a night. Id. Therefore, while the August 2014 VA examination report reflects symptoms of urinary frequency consistent with a 10 percent rating (a daytime voiding interval between two and three hours and awakening to void two times per night), when considering the Veteran's competent and credible reports of awakening to void three to four times per night shortly thereafter, and affording him the benefit of the doubt, the Board finds that a 20 percent is warranted from the beginning of the appeal period, effective February 26, 2013. A rating in excess of 20 percent is not warranted, as the Veteran's prostate cancer residuals have not been manifested by urinary frequency with a daytime voiding interval of less than one hour or awakening to void five or more times per night. Furthermore, contemporaneous examination reports and treatment records do not indicate signs or symptoms of local recurrence or metastasis of prostate cancer, renal dysfunction, or obstructed voiding. The Board acknowledges the Veteran's report of requiring the use of absorbent materials for urine leakage. See May 2016 VA Form 9. However, there is no evidence to suggest that the wearing of such absorbent materials must be changed two to four times per day, as required for a higher rating and a separate rating for urine leakage is not appropriate because it would result in impermissible pyramiding. See 38 C.F.R. § 4.14. Moreover, since 20 percent is the minimum compensable rating for voiding dysfunction manifested by urine leakage requiring the use of absorbent material that must be changed less than two times per day, to rate his prostate cancer residuals as urine leakage, instead of urine frequency, would not benefit the Veteran. Accordingly, a rating greater than 20 percent is not warranted at any point during the appeal period. 3. Entitlement to a separate noncompensable rating for residual prostate cancer scar is granted from February 26, 2013. The Veteran has been assigned a separate noncompensable rating under DC 7802 for a residual prostate cancer scar, effective September 27, 2019. See August 2020 rating decision. DC 7802 evaluates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage and provides a maximum 10 percent rating for an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802. Here, the Board finds that a compensable rating is not warranted for the Veteran's residual prostate cancer scar at any point during the appeal period, as there is no evidence that the scar covered an area of 144 square inches or 929 square centimeters or more, and the Veteran does not assert otherwise. In this regard, the September 2019 VA examiner identified a suprapubic scar associated with the Veteran's radical prostatectomy that was 4 centimeters by 0.5 centimeters and noted no other pertinent physical findings, complications, conditions, signs or symptoms. The Veteran underwent a radical prostatectomy in February 2009. Therefore, the Board will extend his separate noncompensable rating for residual prostate cancer scar to the beginning of the appeal period, or February 26, 2013. The Board has considered whether higher ratings are warranted for the Veteran's residual prostate cancer scar under alternate diagnostic codes. However, DCs 7800, 7801, 7804, and 7805 are inapplicable, as the scar is not located on the head, face, or neck, is not associated with underlying soft tissue damage, is not painful or unstable, and is not greater than 39 square centimeters (6 square inches). See August 2014 and September 2019 VA examination reports. Therefore, a compensable rating is precluded. Service Connection 4. Entitlement to service connection for a left lower extremity neurological disorder is denied. 5. Entitlement to service connection for a right lower extremity neurological disorder is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including peripheral neuropathy, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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 C.F.R. § 3.307(a)(6)(iii). The form of peripheral neuropathy that may be presumed to be related to in-service exposure to herbicide agents is "early-onset peripheral neuropathy," a form of neuropathy that manifests soon after herbicide agent exposure. Here, as there is no diagnosis of peripheral neuropathy of record shortly after herbicide agent exposure, presumptive service connection is not available. However, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence of a current lower extremity neurological disorder is not in dispute, as the Veteran has been diagnosed with peripheral neuropathy in the bilateral lower extremities. See September 2019 VA examination report. Accordingly, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records (STRs) identify any complaints, treatment for, or diagnosis of a lower extremity neurological disorder or symptoms indicative of such. However, an injury in the form of exposure to herbicide agents during his service in Vietnam is presumed. As such, element two is also met. Regarding the last element, nexus, the only competent opinion of record is against the claim. (In this regard, the March 2013 private opinion in favor of the claim is speculative ("could be related") and is therefore of no probative value.) Specifically, a May 2020 VA examiner opined that it was less likely that the Veteran's bilateral lower extremity neurological disorder had its onset in service or was related to service, to include his presumed exposure to herbicide agents therein. The examiner, who acknowledged consideration of the Veteran's history, found no evidence to suggest the development or onset of a neurological disorder while in service, and highlighted the negative STRs and decades between service and the initial diagnosis of lower extremity symptoms. Recognizing that diabetes was a disease associated with herbicide agent exposure, the examiner considered whether the Veteran's neuropathy was due to diabetes. However, she determined that it was less likely due to diabetes, explaining that while the evidence showed the Veteran was prediabetic, his blood test results were not diagnostic of diabetes and therefore he did not have diabetes, emphasizing that prediabetes was not an actual diagnosis of diabetes. Instead, the examiner indicated that the Veteran's bilateral neuropathy was most likely due to his obesity rather than exposure to herbicide agents and cited to medical literature in support of her opinion. Furthermore, after reviewing the March 2013 private positive opinion, the examiner explained that since Veteran's medical records showed other possible etiologies for his lower extremity neuropathy she could not affirmatively opine that it was more likely than not due to herbicide agent exposure during service. Therefore, the examiner concluded that the Veteran's bilateral lower extremity neuropathy was less likely related to service, to include exposure to herbicide agents. The Board affords this medical opinion great probative value, as the examiner considered the Veteran's entire relevant medical history and provided thorough rationale with supporting data based on medical literature. There is no competent opinion to the contrary. To the extent that the Veteran asserts that his left and right lower extremity neurological disorders are due to active duty service or herbicide agent exposure therein, the Board finds that he is not competent to do so, as the determination as to the etiology of such a disorder is a complex medical question that is beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the evidence does not demonstrate that the Veteran's bilateral lower extremity neurological disorder manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease, as there is no indication of any lower extremity neurological symptoms until decades after service. For similar reasons, a nexus through a continuity of symptomatology is not available. See Walker, supra. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for left and right lower extremity neurological disorders. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. REASONS FOR REMAND 6. Entitlement to an initial compensable rating for erectile dysfunction is remanded. Remand for an examination is necessary, as the September 2019 VA examiner did not perform a physical examination of the penis to determine whether there is evidence of penile deformity or any impairment analogous to deformity. Williams v. Wilkie, 30 Vet. App. 134 (2018). 7. Entitlement to service connection for a respiratory disorder is remanded. The Board finds that the September 2019 VA examiner's opinion is inadequate, as he based his negative opinion solely on the fact that the Veteran's respiratory disorder was not a condition presumptively associated with herbicide agent exposure and did not consider the premise that such disorder may still be etiologically related to herbicide agent exposure, regardless of whether it is a listed presumptive disease. Moreover, the examiner did not address the documented sinus symptoms during service or discuss the Veteran's lay statements. Accordingly, an addendum opinion is necessary on remand and any outstanding treatment records should be secured. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then schedule the Veteran for an examination to determine the nature and severity of his erectile dysfunction. All findings should be reported in detail. The examiner must indicate whether there is any distortion of the penis, either internal or external, to include as a result of his radical prostatectomy. 4. Then obtain an addendum opinion from an examiner other than the August 2014/September 2019 VA examiner addressing the etiology of the Veteran's respiratory disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner should address the following: (a) Identify all respiratory disorders diagnosed since February 2013, to include asthma, seasonal/environmental allergies, and allergic rhinitis. If any of the diagnoses are not warranted, please reconcile these findings with the diagnoses of the same in the August 2014 and September 2019 VA examination reports. (b) Is there clear and unmistakable (undebatable) evidence that a respiratory disorder existed prior to active service? Please discuss the August 1965 and July 1969 Report of Medical History noting hay fever in 1965 with "no recurrence." (c) If the answer to question (b) is yes, is there clear and unmistakable evidence that a pre-existing respiratory disorder WAS NOT aggravated (worsened beyond natural progression) during service, to include as a result of conceded herbicide agent exposure therein? Please discuss the medical evidence supporting your conclusion. (d) If the answer to question (b) is no, or the answer to question (b) is yes and question (c) is no, is it at least as likely as not (50 percent or greater probability) that that the Veteran's respiratory disorder had its onset in or is otherwise related to service, to include as a result of the September 1965 complaints of sinus drainage, August 1968 diagnosis of sinusitis, or conceded herbicide agent exposure therein? In addressing these questions, the examiner must discuss and assume as true the Veteran's reports regarding the onset of asthma and allergies shortly after returning from Vietnam that has continued to the present (see January 2015 Notice of Disagreement and May 2016 VA Form 9), and determine, based on the same, whether a nexus between the Veteran's respiratory disorder and service is "medically plausible." Failure to consider the Veteran's lay statements will result in an inadequate opinion. Also, please do not rely solely on negative STRs and/or the fact that presumptive service connection is not available for the condition in question. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.