Citation Nr: 21027733 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-42 792A DATE: May 6, 2021 ORDER A rating in excess of 40 percent for residuals of prostate cancer is denied. A rating in excess of 20 percent for diabetes mellitus (DM) is denied. Service connection for hypertension (HTN) is denied. FINDINGS OF FACT 1. The Veteran had active duty from May 1966 to May 1968, including service in the Republic of Vietnam. 2. Symptoms of the residuals of prostate cancer include increased urinary frequency manifested by the need to urinate every 1 to 2 hours during the day and 3 to 4 times per night and a voiding dysfunction manifested by the use of absorbent materials which need to be changed 2 to 4 times per day. 3. DM has been manifested by treatment through a restrictive diet, prescribed oral hypoglycemic agent, but no restriction of activities. 4. HTN was not shown in service, not shown to a compensable degree within one year of service, symptoms were not continuous since service, and it is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of prostate cancer have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code (DC) 7528 (2020). 2. The criteria for a rating in excess of 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.120, DC 7913 (2020). 3. HTN was not incurred in service or presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, the Veteran was issued a statement of the case (SOC) in September 2018 which included the issues of an increased rating for prostate cancer and DM and service connection for HTN, a heart disorder, and a respiratory disorder. However, the issues of service connection for a heart disorder and a respiratory disorder were erroneously included in the September 2018 SOC as he had already elected to opt into the Rapid Appeals Modernization Program (RAMP) for these issues. As such, these issues have already been adjudicated in RAMP rating decisions and they will not be addressed in this decision. Increased Rating Claims 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. Residuals of Prostate Cancer The Veteran's prostate cancer has been rated as 40 percent under DC 7528 which provides that after treatment for malignant neoplasms of the genitourinary system, if there has been no local recurrence, the symptoms should be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. As the evidence does not show that the Veteran experiences continual urine leakage, urinary diversion, urinary incontinence, or stress incontinence, or obstructed voiding, the Board will consider a higher rating based on urinary frequency. A higher rating is also warranted for renal dysfunction if there is constant albuminuria with some edema or there is a definite decrease in kidney function or there is hypertension at least 40 percent disabling under DC 7101. Turning to the evidence, an August 2017 VA examiner indicated that prostate cancer was in remission and residuals included a voiding dysfunction with urine leakage and increased urinary frequency. Urine leakage required absorbent material to be changed 2 to 4 times per day and the daytime voiding interval was between 1 and 2 hours. Further, the Veteran woke up between 3 and 4 times per night to urinate. The examiner noted that the voiding dysfunction did not require the use of an appliance and residuals of prostate cancer did not result in any renal dysfunction. Next, a July 2019 VA examination reflected a voiding dysfunction with urine leakage manifested by the use of absorbent materials which needed to be changed 2 to 4 times per day. Further, increased urinary frequency resulted in a daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times per night. A voiding dysfunction did not require the use of an appliance and the examiner found no renal dysfunction due to residuals of prostate cancer. In addition, the clinical evidence was reviewed, but the evidence does not show urine leakage that required use of the appliance or absorbent materials that must be changed more than 4 times per day. Further, the evidence does not show renal dysfunction due to prostate cancer. The Veteran testified at a hearing before the Board that he had to change pads 4 to 5 times per day depending on how much liquid he drank. He indicated that he wore pads at night in case he was not able to make it to the bathroom. He reflected that he was able to tell when he needed to urinate but it depended on how far he was from the bathroom. Based on the medical evidence and the Veteran's testimony, the predominant symptom is urinary frequency. The current 40 percent rating contemplates the Veteran's symptoms of frequent daytime voiding and awakening at night to urinate. While he has indicated that he sometimes changes his pads 4 to 5 times per day, this is dependent on fluid intake and not tied directly to a voiding dysfunction due to prostate cancer. Next, the medical evidence does not support a finding of renal dysfunction. Specifically, in March 2018, a private blood pressure reading was 159/92 and 162/80 in April 2018. An October 2018 albumin level was reported as 4.5 g/dL with a normal range of 3.4-4.8. At that time, the blood pressure reading was noted to be 190/95 but the Veteran reported that he had not taken his medication and related that his blood pressure readings were 128/70 at home. In order to warrant a 40 percent rating for hypertension, the diastolic pressure must be predominantly 120 or more. While the medical evidence reflects elevated blood pressure readings, it does not show diastolic pressures at 120. Rather they have been noted to be in the 80-90+ range, but never over 100. Therefore, the medical evidence does not support a higher rating based on renal dysfunction. DM The Veteran is currently rated at 20 percent under DC 7913. In order to warrant a higher rating of 40 percent, the medical evidence must show DM requiring insulin, restricted diet, and regulation of activities. Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Turning to the medical evidence, an August 2017 VA examiner reported that DM was managed by a restricted diet and oral hypoglycemic agent. The examiner specifically denied that the Veteran required regulation of activities as a part of management of DM. Further, there was no indication that the use of insulin was required. Next, the clinical treatment records do not reflect the use of insulin or regulation of activities for the treatment of DM. Weighing against the claim, the medical treatment records, including October 2018 VA treatment notes, reflect recommendations of healthy diet and exercise rather than reduced activity. As such, the medical evidence does not support a rating in excess of 20 percent for DM. The Board has also considered the Veteran's lay statements that his disabilities are worse. While 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 these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's prostate cancer and DM 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 these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Service Connection for HTN 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 listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran: (1) 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, clinical treatment records reflect that the Veteran has been diagnosed with HTN. As such, a current diagnosis has been shown and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) do not reflect complaints related to or a diagnosis of HTN. The May 1968 separation examination reflected a blood pressure reading of 132/88. Further, there was no diagnosis of HTN or any symptoms reasonably attributed to HTN made at any time throughout service, including at separation. Hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more, or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, DC 7101, Note (1). None of the in-service blood pressure readings meet these criteria. Therefore, the second element of direct service connection is not met. Next, Veteran contends that HTN is due to herbicide exposure, including Agent Orange, during service. As he served in the Republic of Vietnam, exposure to herbicides is conceded. However, HTN is not a disease presumptively associated with exposure to herbicides. Further, there are no medical opinions of record which link HTN directly to herbicide exposure. Accordingly, service connection for HTN as due to herbicide exposure is not warranted on a direct causation or herbicide exposure basis. Further, the medical evidence does not support presumptive service connection on a "continuity of symptomatology" or on a "manifest within one-year from separation" basis. As noted above, HTN was not shown during service. Therefore, HTN was not chronic since separation from service. As to continuity of symptomatology, the Veteran separated from service in 1968, but the medical evidence does not show treatment for HTN until September 2014. While not dispositive, this lengthy period between separation from service and treatment weighs against the claim. Further, there is no evidence which shows that HTN manifested to a compensable degree within one year of separation from service. While he separated from service in 1968, treatment records do not mention HTN until 2014, nearly 50 years after separation. Accordingly, the medical evidence does not support HTN on a chronicity/continuity of symptomatology basis. The Board has considered the Veteran's lay statements that his 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 T. Kokolas, 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.