Citation Nr: 21029909 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-60 193 DATE: May 17, 2021 ORDER Service connection for coronary artery disease (CAD), as due to herbicide exposure, is granted. An initial disability rating of 20 percent for the service-connected erectile dysfunction (ED) for the entire rating period is granted. An initial disability rating higher than 40 percent for the service-connected residuals of prostate cancer for the entire rating period is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during service. 2. The Veteran is currently diagnosed with CAD. 3. For the entire initial rating period from June 24, 2014, ED was manifested by loss of erectile power with a penis deformity. 4. For the entire initial rating period from June 24, 2014, prostate cancer residuals were manifested by urine frequency requiring absorbent materials be changed two to four times per day, daytime voiding intervals between one and two hours, and nighttime awakening to void three to four times with no required use of an appliance. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for CAD due to presumed herbicide exposure are met. 38 U.S.C. §§ 1110, 1112, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 20 percent rating, and no higher, for ED are met for the entire initial rating period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115b, DC 7599-7522. 3. The criteria for an initial disability rating higher than 40 percent for prostate cancer are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.115a, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1967 to May 1969. This matter is on appeal from a November 2015 rating decision. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned. The Board finds that the duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of CAD, as a cardiovascular disease, is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In this case, the Veteran served in Korea along the demilitarized zone (DMZ) from February 1968 to May 1969 with the 3rd Battalion, 32nd Infantry. Because the Veteran's unit has been identified as having been in the area of Korea where herbicides were used and he served within the time period when the Department of Defense has determined that herbicides were used (i.e., from April 1968 to July 1969), the AOJ has determined that herbicide exposure in service is presumed. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. The list of diseases associated with exposure to certain herbicide agents includes ischemic heart disease. See 38 C.F.R. § 3.309(e). Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 1. Service connection for CAD is granted. The Veteran seeks service connection for CAD due to presumed herbicide exposure during service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has ischemic heart disease, which is a disease presumed to be associated with herbicide exposure during service. At the Board hearing, the Veteran testified that a treating physician had diagnosed CAD approximately one year earlier. Although current treatment records of record do not show a current diagnosis of CAD, the Veteran is competent to report a contemporaneous CAD diagnosis and the account is deemed credible and of significant probative value, particularly given that private treatment records of record dated from 2005 to 2006 include the diagnosis of CAD. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present). CAD is one of the cardiovascular diseases considered by regulation to be ischemic heart disease. As stated above, the list of diseases associated with exposure to certain herbicide agents includes ischemic heart disease. In consideration of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for CAD (i.e., an ischemic heart disease), as due to herbicide exposure are met. 2. A 20 percent rating for ED is granted. Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For the entire initial rating period from June 24, 2014, ED is rated at 0 percent under 38 C.F.R. § 4.115b, hyphenated DC 7599-7522 for an unlisted condition rated by analogy to penis deformity with loss of erectile power. See 38 C.F.R. § 4.31 (providing for zero percent ratings in every instance where the schedule does not provide a zero percent rating for a diagnostic code and the requirements for a compensable rating are not met). Under DC 7522, a single (and maximum) 20 percent disability rating is provided for penis deformity with loss of erectile power. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the criteria for a 20 percent rating under hyphenated DC 7599-7522 for ED are met for the entire initial rating period. The November 2015 VA examination report reveals that the Veteran is not able to achieve an erection sufficient for penetration and ejaculation without medication, which indicates a loss of erectile power. Later, the February 2021 Board hearing, the Veteran competently testified that he has a penis deformity (i.e., the penis turned to one side after prostate surgery), and there is no indication from the record that the account is not credible. Thus, the evidence shows loss of erectile power with a penis deformity; therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating for ED is warranted for the entire initial rating period. 3. An initial rating higher than 40 percent for residuals of prostate cancer is denied. For the entire initial rating period from June 24, 2014, prostate cancer residuals are rated at 40 percent from under the criteria found at 38 C.F.R. § 4.115b, DC 7528 for malignant neoplasms of the genitourinary system. Prostate cancer is rated based on residual voiding dysfunction, the predominant disability. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a, DC 7528. Regarding urine leakage, a 40 percent rating is warranted when the wearing of absorbent materials must be changed two to four times per day. A 60 percent rating is warranted when use of an appliance is required or wearing of absorbent materials must be changed more than four times per day. See 38 C.F.R. § 4.115a. As for urinary frequency, a maximum 40 percent rating is warranted for daytime voiding intervals of less than an hour or awakening to void five or more times per night. See 38 C.F.R. § 4.115a. The maximum rating available based on obstructed voiding is 30 percent, which is when there is urinary retention requiring intermittent or continuous catheterization. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that an initial rating higher than 40 percent under DC 7528 is warranted for prostate cancer residuals for any period. Throughout the initial rating period, the prostate cancer residuals were not manifested by residual urine leakage requiring use of an appliance or absorbent materials to be changed more than four times per day, which is the criteria needed for the next higher 60 percent schedular rating. Rather, prostate cancer residuals were manifested by urine frequency requiring absorbent materials be changed two to four times per day, daytime voiding intervals between one and two hours, and nighttime awakening to void three to four times with no required use of an appliance. The disability picture during the rating period is consistent with the 40 percent schedular rating criteria under DC 7528. For these reasons, the Board finds that a disability rating higher than 40 percent for prostate cancer under DC 7528 is not warranted for any period. The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b). 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). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.