Citation Nr: 21028133 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-02 713 DATE: May 10, 2021 ORDER Entitlement to service connection for right upper extremity neuropathy associated with prostate cancer is denied. Entitlement to service connection for left upper extremity neuropathy associated with prostate cancer is denied. Entitlement to service connection for right lower extremity neuropathy associated with prostate cancer is denied. Entitlement to service connection for left lower extremity neuropathy associated with prostate cancer is denied. Entitlement to a total rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The most probative evidence of record does not show that the Veteran's neuropathy of the bilateral upper and lower extremities is etiologically related to a disease, injury, or event in service, or to a service-connected disability. 2. The Veteran's service-connected disabilities do not render him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for neuropathy of the bilateral upper and lower extremities have not been met. See 38 U.S.C. § §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1965 to August 1967 with service in Vietnam. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. With regard to the duty to assist, the Veteran's representative argued in the April 2021 Written Brief Presentation that an adequate medical opinion had not been obtained on this matter and that the Regional Office (RO) failed to discuss in the most recent supplemental statement of the case (SSOC) the Veteran's statement in response to a November 21, 2019, development letter. Moreover, the representative argued that a January 22, 2020, VA medical opinion supported the Veteran's claim. Firstly, while the claims file contains a January 22, 2020, Peripheral Nerve Conditions Disability Benefits Questionnaire (DBQ), no medical opinion was provided in this DBQ, much less a medical opinion that supported the Veteran's claim. Secondly, the representative argued that the December 2020 VA medical opinion provided on this matter did not address a lay statement from the Veteran or private medical evidence submitted by the Veteran on December 23, 2019, and cited subsequent medical history from 2012 and 2020 without discussing the relevance of the subsequent medical history. The Board notes that the December 2020 VA examiner clearly marked that she reviewed the claims file. There is no indication that she did not have access to the identified evidence. The Board notes that an examiner is not required to discuss every piece of evidence in the file. The examiner indicated that she reviewed the claims file, discussed all evidence she deemed to be pertinent, and provided a detailed rationale for her opinion. (Notably, her detailed rationale discussed more evidence than solely the 2012 colonoscopy and the 2020 CT scan referenced in the April 2021 Written Brief Presentation, to include evidence from 2009 relating to the Veteran's prostate cancer treatment.) As such, the Board finds this opinion to be sufficient upon which to adjudicate the claim. Thirdly, while the representative argued that the RO failed to discuss a lay statement and private medical evidence submitted by the Veteran on December 23, 2019, in the SSOC, the Board notes that the RO is also not required to discuss every piece of evidence in the file. The RO listed the identified evidence in the evidence section of the SSOC and discussed the Veteran's theory that his chemotherapy had some relation to his prostate cancer. As such, the Board finds no indication in the record to suggest that the RO did not have access to or did not consider all evidence in the claims file when adjudicating this claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § §§ 1131; 38 C.F.R. § § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for bilateral upper and lower extremity neuropathy associated with prostate cancer is denied. The Veteran claims that his neuropathy is secondary to his service-connected prostate cancer or the chemotherapy he received to treat cancer. Specifically, the Veteran reports that his doctors recommended chemotherapy because he had prostate cancer and colon cancer occurring within less than one year of each other. See Correspondence, August 2015; see also Form 9 (wherein the Veteran states, "Without both cancers, I would not have been given chemotherapy.") The Veteran's contention is essentially that he only received chemotherapy, which resulted in his neuropathy, because his colon cancer was diagnosed so soon after his prostate cancer diagnosis. The medical record shows that the Veteran has neuropathy in both his upper and lower extremities. See VA examination, May 2013. The examination found that the condition was aggravated by chemotherapy. Because the Veteran did not receive chemotherapy for his prostate cancer, the examiner did not find that the Veteran's neuropathy was caused or aggravated by his prostate cancer. Id. Instead, the examiner opined, "[T]he evidence indicates the veteran's bilateral upper and lower neuropathies were at least as likely as not aggravated beyond natural progression by the chemotherapy for his colon cancer." Id. In August 2019, the Board remanded these claims in order to obtain a medical opinion addressing the Veteran's contention that he only received chemotherapy for his colon cancer because of his service-connected prostate cancer. The Veteran was noted in a January 2020 Disability Benefits Questionnaire (DBQ) as having bilateral upper and lower extremity polyneuropathy. The Veteran reported that he had chemotherapy in February 2011 for his prostate cancer and that he developed numbness right away. A medical opinion was not provided regarding the etiology of his polyneuropathy in this report. In a December 2020 VA opinion, the examiner determined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner concluded that the Veteran's medical records do not support that the colon cancer or the need for chemotherapy is due to or the result of the Veteran's service-connected prostate cancer. The examiner noted that there was no chemotherapy or radiation as part of the treatment for the prostate cancer. The Veteran underwent a prostatectomy on February 25, 2009. In October 2009, the PSA result findings were 0.001. On February 24, 2020, a CT of the abdomen and pelvis showed no evidence of metastatic colon cancer. It was noted that the Veteran was status post prostatectomy with no sign of local tumor recurrence or metastatic disease. The examiner noted that the prostatectomy was performed on February 25, 2009, which was the treatment for the prostate cancer per the established urology specialist that noted this specifically on the medical encounter on April 23, 2009, where the PSA level at that encounter was noted to be 0.04. A June 4, 2009, CT scan showed no evidence of metastatic prostate cancer in the abdomen. The examiner found that the Veteran's prostate cancer was in remission prior to the onset of the colon cancer. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Currently, there is no medical evidence of record indicating that the Veteran had neuropathy of the upper or the lower extremities in service and no medical opinions of record linking neuropathy of the upper or the lower extremities to service. Moreover, the Veteran himself has not asserted that he developed neuropathy of the upper or the lower extremities during service or as a direct result of his service. As such, the Board finds that service connection cannot be granted for neuropathy of the upper or the lower extremities on a direct basis. With regard to granting service connection on a secondary basis, the Board acknowledges the Veteran's assertions that his neuropathy was due to chemotherapy that he believes he would not have undergone but for his prostate cancer. Currently, there is no competent medical evidence of record supporting this assertion. A May 2013 VA examiner determined that the Veteran's bilateral upper and lower extremity neuropathies were at least as likely as not aggravated beyond natural progression by the chemotherapy for his colon cancer. However, the Board finds that the medical evidence of record does not reflect that this chemotherapy was at all related to his prostate cancer or that he would not have undergone chemotherapy but for his prostate cancer. The December 2020 VA examiner specifically concluded that the Veteran's medical records do not support finding that the colon cancer or the need for chemotherapy is due to or the result of the Veteran's service-connected prostate cancer due to the fact that there was no chemotherapy or radiation as part of the treatment for the prostate cancer. There is no medical evidence to the contrary. As such, the Board finds that service connection cannot be granted for neuropathy of the bilateral upper and lower extremities on a secondary basis. The Board has considered the Veteran's assertions that he has neuropathy of the bilateral upper and lower extremities as a result of chemotherapy he alleges to have only needed to treat his colon cancer due to the fact that he had recently had prostate cancer. However, the Board finds that the Veteran is not competent to make such a finding or draw such a link, as he does not have training or medical expertise relating to tumors or cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran reported that he was informed by his healthcare providers that the decision to treat his colon cancer with chemotherapy was due to the proximity in time between his prostate cancer diagnosis and his colon cancer diagnosis, the Board notes that a Veteran is competent to report information that a physician relays to him. Jandreau, supra. However, the Board finds the Veteran's reports regarding being treated with chemotherapy due in part because of his history of prostate cancer to be not persuasive evidence. The available medical evidence of record gives no indication that the Veteran's prostate cancer diagnosis played any role in the decision to treat his colon cancer with chemotherapy. A June 16, 2009, CT of the pelvis noted that the Veteran had no signs of locally recurrent or metastatic prostate cancer. In a February 4, 2011, treatment record from Crossroads Cancer Center, it was noted that the Veteran was currently on no treatment and had no signs of remaining cancer related to his prostate. Further, the Board notes that a Veteran's recalling what a physician told him, i.e., "hearsay medical evidence," cannot constitute actual medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69 (1995). Thus, the Board finds these assertions are not probative. Further, the Board has considered the representative's suggestion in the April 2021 Written Brief Presentation that the Veteran's prostate cancer could have metastasized into his colon. Specifically, the representative argued that, even though a cancer in one organ is "in remission", it is still possible for some cancer to be missed and for the cancer to metastasize and appear in another organ. While the Board notes it is possible for cancer to metastasize from one organ to another, this is clearly not the case in this Veteran's situation. A January 16, 2009, CT scan of the abdomen and pelvis showed no metastatic disease. A bone scan showed no metastatic disease. The Veteran underwent a prostatectomy in February 2009. Subsequently, a June 16, 2009, CT of the pelvis noted that the Veteran was status/post radical prostatectomy with no signs of locally recurrent or metastatic prostate cancer. Further, in a February 4, 2011, treatment record from Crossroads Cancer Center, it was noted that the Veteran had prostate cancer in 2009 and was status post prostatectomy. It was noted that he was currently on no treatment and had no signs of remaining cancer. In the May 2013 VA examination report, the VA examiner opined that it is less likely as not that the Veteran's colon cancer was caused and/or aggravated by his service-connected prostate cancer since the evidence states he was cancer free without metastasis following a radical prostatectomy in 2009, and he developed a primary colon cancer nearly 2 years later. The examiner noted that the Veteran did not have metastatic spread of prostate cancer; therefore, it could not cause his primary colon cancer. There was no evidence of prostate cancer after prostatectomy. Therefore, it could not have aggravated the colon cancer that developed significantly 2 years after his prostate cancer. A February 24, 2020, CT of the Veteran's abdomen and pelvis noted that the Veteran was status post prostatectomy with no sign of local tumor recurrence or metastatic disease, and that there was no evidence of metastatic colon cancer. Therefore, while the Board notes the concerns regarding potential metastasis of his prostate cancer, there is no medical evidence to support this assertion. In fact, the medical evidence record actually refutes this assertion by showing that the Veteran was status/post radical prostatectomy with no signs of locally recurrent or metastatic prostate cancer, as of the June 16, 2009, CT scan of the pelvis. Finally, the Board notes that the Veteran submitted a private medical record dated February 12, 2016, in which it was noted that the Veteran's condition included prostate cancer-primary, and malignant neoplasm of sigmoid colon. The Veteran's representative argued in the April 2021 Written Brief Presentation that the notation of a primary diagnosis of prostate cancer suggests that colon cancer could be a secondary diagnosis. The Board has considered this argument but finds it is not persuasive, in light of all of the other medical evidence of record discussed above indicating that the Veteran's prostate cancer was in remission well before his colon cancer diagnosis and showed no sign of metastasis. See VA examination report, May 2013; CT scans, June 16, 2009, and January 16, 2009; and Crossroads Cancer Center treatment record, February 4, 2011. Moreover, the Board finds that listing the word "primary" after prostate cancer does not provide a sufficient rationale for an inferred finding that another cancer would potentially be secondary to prostate cancer, especially considering the detailed negative VA opinion above concerning the relationship between the two cancers. Finally, there is no implied claim pending concerning colon cancer, as service connection was denied in the 2013 rating decision on appeal, and the Veteran did not challenge that determination. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for neuropathy of the upper or the lower extremities, and the benefit-of-the-doubt rule is not for application. 2. Entitlement to TDIU is denied. The Veteran is seeking entitlement to TDIU. The Veteran primarily asserts that both his neuropathy and his prostate cancer make him unable to secure employment. See Statement in Support of Claim, February 2013. Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In such cases, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, that would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Veteran has been service connected at 10 percent for tinnitus since September 28, 2005, and at 60 percent for prostate cancer status post radical prostatectomy with erectile dysfunction since May 1, 2010. Therefore, the Veteran's service-connected disabilities meet the percentage requirements for TDIU under VA regulations. In the February 2013 statement, the Veteran asserted that, as a result of both of his cancers, he is frequently tired and fatigued. He often varies between diarrhea and constipation. The ringing noise in his ears is more intense than it was previously. He reported that he worked in the past as a substitute teacher, but he could not do that anymore because of his frequent need to have a bowel movement and the need to urinate. He also worked part time as a dump truck driver and backhoe operator for the local township road commissioner but could not do that anymore because the neuropathy of his hands and feet make it difficult to enter and exit the equipment and operate the levers to perform the necessary functions. The neuropathy causes difficulty walking on uneven surfaces, causing him to trip or stumble, as well as causes difficulty using his fingers to manipulate small items. With regard to whether the Veteran is unable to secure and follow a substantially gainful occupation, the Board notes that only the symptoms related to his service-connected tinnitus and prostate cancer status post radical prostatectomy with erectile dysfunction may be considered when determining entitlement to employability. While the Veteran has asserted his neuropathy affects his employability, service connection has been denied for this disability, as discussed above. Also, to the extent he reports residuals of colon cancer, such as bowel disturbances, that is also not a service-connected disability. With regard strictly to his service-connected disabilities, the Veteran appears to be asserting that his employability is affected by fatigue and tiredness due to his cancer, frequent need to use the bathroom, and intense ringing in his ears. Notably, the Board requested in the August 2019 remand that the Veteran submit an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. The Veteran did not submit this form, which could have provided useful information to this claim. The Board has reviewed the evidence to determine his occupational history. In an October 2009 VA genitourinary examination report, the Veteran reported that his voiding intervals were generally 45 to 90 minutes. The Veteran reported that he was a teacher but did not return to work following his prostatectomy, as his urinary voiding intervals would have been too frequent to assume his job as a teacher in his classroom. It was noted that he was retired. In a March 2012 VA examination report, it was noted that the Veteran's tinnitus did not impact ordinary conditions of daily life, including ability to work. In a May 2013 VA examination report, it was noted that the Veteran's employment history includes factory worker/welder, railroad worker, employment counselor, and teacher. He retired in 2002. Following retirement, he began operating a backhoe. The examiner determined that the Veteran's service-connected prostate cancer status post radical prostatectomy with residuals does not render him unable to secure and maintain gainful employment. He is able to perform all activities as associated with his educational background and experience as a classroom educator, despite his prostate cancer residuals, which are amendable to treatment. With regard specifically to his reported urinary symptoms, the Veteran reported in July 2014 and March 2015 VA treatment records that he had no increase in frequency of urination, no dysuria, no urgency to void, no hematuria, and no incontinence. In a January 2017 VA treatment record, the Veteran reported no genitourinary complaints. In January and June 2020 VA treatment records, no urgency, dysuria, leaking, or incontinence was noted. With regard specifically to the Veteran's reported diarrhea and constipation requiring the need to use the bathroom, the Board again notes that the Veteran is not service connected for colon cancer. It was noted in an October 2009 VA genitourinary examination after his prostatectomy that he had no problems with his bowels. It was noted in the May 2013 VA examination report that the Veteran had frequency in diarrhea and loose stools status post colon resection. Since the medical evidence attributes these symptoms to the nonservice-connected colon cancer, they cannot be considered for his TDIU claim. While the Board does not doubt that the Veteran's service-connected disabilities impact his employability, the weight of the evidence does not reflect that his service-connected disabilities are of such severity so as to preclude his participation in substantially gainful employment. The Board acknowledges the Veteran's reports that his fatigue, frequent need to use the bathroom, and intense ringing in his ears affect his ability to maintain employment. However, the March 2012 VA examiner specifically found that the Veteran's tinnitus did not impact his ability to work, and the May 2013 VA examiner found that his service-connected residuals of prostate cancer status post radical prostatectomy did not render him unable to secure and maintain gainful employment. There is no medical evidence to the contrary. The need to frequently urinate would certainly affect one's performance at work, but it would not preclude him from holding gainful employment, considering his extensive educational and occupational history. The 2013 VA examination indicated he has a Bachelor's degree and a Master's degree in Education and was a teacher for many years and then an employment counselor with a government agency. The latter job, in particular, shows he has experience in a sedentary, office type environment, where there would, in the ordinary course of business, be ready access to bathroom facilities. In summary, the Board finds there is simply no medical evidence of record reflecting that the Veteran is unemployable as a result of any of his service-connected disabilities. The available medical opinions on the matter refute his assertions that he is unemployable as a result of his service-connected tinnitus and prostate cancer status post radical prostatectomy with erectile dysfunction. Moreover, the Board notes that the Veteran's employability claims were also based on his reports of neuropathy affecting his employability. Again, these symptoms related to a nonservice-connected disability cannot be considered. Therefore, the Board finds that the symptoms associated with his service-connected disabilities, including the degree of occupational impairment present, are appropriately compensated via the ratings assigned to these disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, 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." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, the Board finds that the Veteran has not met the criteria for entitlement to TDIU. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.