Citation Nr: 21040052 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-26 075 DATE: July 2, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied. Entitlement to service connection for a renal disability, to include as secondary to service-connected diabetes mellitus, type II, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II, is denied. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, to include as secondary to diabetes mellitus, type II, is denied. Entitlement to service connection for bilateral peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus, type II, is denied. Entitlement to an increased rating in excess of 10 percent for transient ischemic attack (TIA) is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is denied. REMANDED Entitlement to service connection for a cardiac disability, to include as due to herbicide exposure or secondary to service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran's prostate cancer manifested many years after active service discharge and the probative evidence does not relate it to his service, including as a result of exposure to herbicide agents. 2. The Veteran's renal disability, erectile dysfunction, and bilateral peripheral neuropathy of the upper and lower extremities disabilities are not shown to be causally or etiologically related to any disease, injury, or incident in-service; or caused or aggravated beyond the natural progression by his service-connected diabetes mellitus, type II. 3. During the period on appeal, the Veteran did not have additional residuals of a TIA not contemplated by the currently assigned minimum schedular rating. 4. For the entire rating period under consideration, the Veteran's service-connected disability of diabetes mellitus, type II has been managed using oral hypoglycemics, and regulation of activities was not required to control diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for renal disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for bilateral peripheral neuropathy of the lower extremities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for bilateral peripheral neuropathy of the upper extremities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to a rating in excess of 10 percent for TIA residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 34.1, 4.2, 4.3, 4.7, 4.120, 4.124a, Diagnostic Code (DC) 7319-8009. 7. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.119, DC 7913 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1954 through June 1969 and from June 1969 through May 1975, which includes honorable service in the Republic of Vietnam. The Veteran died in March 2016. His surviving spouse is the Appellant and has been properly substituted. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, August 2018, and April 2019 the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. The Board notes that the Appellant informed the RO that she wanted to reopen the claim for entitlement to service connection for cause of Veteran's death, to include as due bladder cancer. See VA 27-0820 Report of General Information. However, it is unclear from the record whether the RO has acted on the Appellant request. Considering that bladder cancer has recently been added to the list of presumptive diseases for herbicide exposure, and the Veteran had conceded herbicide exposure, the RO should ensure that the duty to assist the Appellant has been satisfied in reopening the claim for the cause of the Veteran's death. The Appellant is strongly encouraged to initiate a claim to reopen the previously denied claim. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents, including early-onset peripheral neuropathy, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), prostate cancer and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina). See 38 C.F.R. § 3.309 (e). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, (2) an already service-connected disability, and (3) that the disability for which secondary service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for prostate cancer is denied. The Appellant alleges that the Veteran's prostate cancer is related to his service, to include his exposure to herbicides. The record confirms a diagnosis of prostate cancer. See January 2021 C&P Exam. Thus, the first element for establishing service connection has been satisfied. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; and whether his current disability is related to an in-service incurrence, if any. The RO has previously conceded the Veteran's exposure to herbicides during his service in Vietnam. See October 2015 Rating Decision. Otherwise, treatment notes are silent for treatment, diagnoses, or complaints related to prostate cancer. The Veteran's exposure to herbicides during service satisfies the second element of an ia-service injury. The remaining question for the Board is whether the Veteran's prostate cancer is related to his in-service herbicide exposure. In May 2018, a VA examiner reviewed the existing record and opined that the Veteran did not have a primary prostate cancer. In December 2021, a VA examiner opined that the Veteran's prostate cancer was less likely than not caused by service, or otherwise medically related, to include his presumed exposure to herbicide exposure. The examiner explained that the Veteran had transitional cell carcinoma in situ of the prostate gland, which is a metastasis from his bladder cancer and is not a primary cancer of the prostate gland. Based on the aforementioned, the Board finds that service connection for prostate cancer is not warranted. First, the Board notes that presumptive service connection is not warranted, as the Veteran's prostate cancer manifested decades after the Veteran's discharge. Thus, presumptive service connection for a chronic disease is not warranted. Similarly, although herbicide exposure has been conceded, service connection cannot be presumed per VA policy unless the prostate is the primary cancer site. The Veteran's primary site is indisputably his bladder, with his prostate cancer constituting a metastasis. Thus, presumptive service connection is also not available for the Veteran's prostate cancer under 38 C.F.R. § 3.309. Although presumptive service connection is not available for the Veteran's prostate cancer. Service connection may still be established on a direct basis. The Board finds, however, that service connection on a direct basis is also not warranted. In so finding, the Board finds the December 2020 VA examiner's opinion highly probative, as the opinion was rendered by a competent medical clinician and supported by adequate rationale. Further, the Veteran's service treatment records are silent for diagnoses or treatment related to prostate cancer. The Appellant, nor her representative, have submitted contrary medical opinions relating the Veteran's prostate cancer to his service. Although the Appellant sincerely believes that the Veteran's prostate cancer is related to his service, the Appellant is a layperson and lacks the training/expertise to opine competently on medical questions such as those presented in the instant case. Lay statements are not competent evidence regarding diagnosis or etiology in such case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007), Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence is against finding that service connection is warranted for the Veteran's prostate cancer. As such, the claim is denied. Entitlement to service connection for a renal disability, erectile dysfunction, and bilateral peripheral neuropathy of the upper and lower extremities, to include as secondary to diabetes mellitus, type II, is denied. The Appellant contends that the Veteran's renal disability, erectile dysfunction, and bilateral peripheral neuropathy of the upper and low extremities are related to service, to include as secondary to his service-connected diabetes mellitus, type II disability. The record contains current diagnoses of a renal disability, erectile dysfunction, and bilateral peripheral neuropathy of the upper and lower extremities disabilities. See May 2018 C&P examination. Thus, the first element for establishing service connection has been satisfied. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; whether the current disability is related to an in-service incurrence, if any; or whether these disabilities are secondary to the Veteran's service-connected diabetes mellitus, type II disability. The Veteran's service treatment records are silent for treatment, complaints, or diagnoses related to the renal system, erectile dysfunction, and peripheral neuropathy of the upper and lower extremities disabilities. In May 2018, a VA examiner reviewed the existing record. The examiner found that the Veteran's renal disability, erectile dysfunction, and peripheral neuropathy of the upper and lower extremity disabilities were less likely than not caused or aggravated by his service-connected diabetes mellitus, type II. Concerning his renal disability, the examiner explained that the record did not show evidence of abnormal BUN, creatine, or renal disease until the Veteran was affected by bladder cancer that spread to his renal pelvis in late 2010. His diabetes mellitus, type II was well controlled since his diagnosis in 2003. A pathology study of his kidney did not demonstrate any diabetic nephropathy changes. Concerning his erectile dysfunction, the examiner explained that the Veteran's diabetes mellitus, type II was present for a short duration and well controlled over the years. Further, aggravation beyond natural progression has not been demonstrated. His primary risk was multiple bladder cancer procedures and invasion of bladder cancer into local structures, including his prostate and penile urethra. Concerning his bilateral peripheral neuropathy of the upper and lower extremities, the examiner explained that no relationship to diabetes mellitus type II is evidenced. Further, aggravation is not warranted. The examiner noted that the peripheral neuropathy was ultimately attributed to age-related lumbar spinal stenosis. In January 2021, a VA examiner opined that the Veteran's bilateral peripheral neuropathy of the upper and lower extremities is less likely than not caused by his service or service-connected diabetes mellitus, type II. The examiner explained that the Veteran's diabetes was controlled at the time diabetic peripheral neuropathy was noted. Additionally, his renal disability and erectile dysfunction were less likely than not caused by service. The examiner explained that the Veteran had surgical nephrectomy with pathology studies indicating invasive transitional cell carcinoma. Additionally, his erectile dysfunction is due to invasive bladder itself and not the treatment thereof. Considering the aforementioned, service connection for the Veteran's renal disabilities, erectile dysfunction, and bilateral peripheral neuropathy of the upper and lower extremities disabilities is not warranted. In so finding, the Board finds that the May 2018 and January 2021 VA examiners' opinions against direct and secondary service connection are highly persuasive and probative. These opinions are supported by a detailed review of the evidence and are adequately explained. Further, service treatment records are silent for diagnoses or complaints related to any renal, erectile dysfunction, and bilateral peripheral neuropathy of upper and lower extremities disabilities. Notably, neither the Appellant, nor her representative, have submitted medical opinions to support service connection is warranted for these disabilities. For these reasons, the preponderance is against finding that the Veteran is entitled to service connection, to include secondary service connection, for the Veteran's renal, erectile dysfunction, and bilateral peripheral neuropathy of the upper and lower extremities. Although the Appellant sincerely believes that the Veteran's renal, erectile dysfunction, and bilateral peripheral neuropathy of the upper and lower extremities are related to his service. The Appellant is a layperson and lacks the training/expertise to opine competently on medical questions such as those presented in the instant case. Lay statements are not competent evidence regarding diagnosis or etiology in such case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007), Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against finding that the renal, erectile dysfunction, and bilateral peripheral upper and lower extremities disabilities are related to service, or is proximately caused or aggravated by his service-connection service-connected diabetes mellitus, type II, the claims for service connection, under direct and secondary theories, are denied. Increased Rating Disability evaluations 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. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Entitlement to an increased rating in excess of 10 percent for TIA is denied. Currently, the Veteran's TIA residuals is assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.124a, DC 7319-8009. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, DC 7913 is associated with the Veteran's service-connected diabetes mellitus, type II. DC 8009 evaluates brain vessel hemorrhage. Thus, in this instance, the hyphenated code evaluates the Veteran's TIA associated with his diabetes mellitus, type II. Under Diagnostic Code 8009, a hemorrhage involving the blood vessels of the brain warrants a 100 percent rating for a period of six months. Thereafter, the rating will be based on associated residual disability, with a minimum rating of 10 percent. 38 C.F.R. § 4.124a, DC 8009. In the May 2018 VA medical opinion, the examiner found that the record contained a largely historical TIA event in June 2008. There were no manifestations or residuals of the TIA during any period from December 2014 through March 2016. In a December VA medical opinion, an examiner found that there was no evidence of recurrent TIAs between December 2014 and March 2016. Hence, there was no change in the status of TIA. Treatment records during the relevant period at issue do not demonstrate any greater findings than noted in the VA examinations. Given the above, the Board finds the competent, medical evidence does not demonstrate additional, compensable residuals of the TIA. Medical evidence of record document that the Veteran had no manifestations or residuals of his TIA during the period on appeal. Consequently, the Board finds the evidence does not show symptomatology that is not contemplated by the currently assigned 10 percent rating for residuals of TIA under DC 8009. 38 C.F.R. § 4.124a. Accordingly, entitlement to a rating in excess of 10 percent for TIA residuals is not warranted. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is denied. The Veteran's diabetes mellitus, type II, is assessed a 20 percent disability rating under 38 C.F.R. § 4.119, DC 7913. The Appellant disagrees with the rating assigned. A 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year, or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but non-compensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Id. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)) In April 2018, the VA examiner documented that the Veteran was diagnosed with diabetes mellitus, type II in 2003. Since then, his diabetes mellitus, type II has been well controlled with no evidence of comorbid disease. There was also no regulation of activities or diabetes related glucose episodes. In May 2018, a Disability Benefits Questionnaire was completed for the Veteran's diabetes mellitus, type II. It noted that he was treated with prescribed oral hypoglycemic agents. He visited his diabetic care provider less than two times per month and did not have regulation of activities. He also had no complications of diabetes mellitus, type II. In December 2020, a VA examiner noted that the Veteran's diabetes mellitus, type II was stable and well controlled on single oral medications without a requirement for insulin. He also did not have any complications nor required hospitalized due to episodes of ketoacidosis or hypoglycemic reactions between December 2014 to March 2016. Further, his diabetes mellitus, type II did not result in weight loss or cause any other complications. Treatment records are consistent with the findings of the VA examinations, and showed no evidence of regulation of his activities. As noted, a rating in excess of 20 percent requires the regulation of activities to treat diabetes mellitus. This has simply not been shown by the record at any time, and because a schedular rating in excess of 20 percent requires the regulation of activities to treat diabetes mellitus, a higher schedular rating is not warranted at any time during the course of the Veteran's appeal. The Board finds no indications that the Veteran's activities required regulation, ordered by a medical professional, to control his diabetes. Moreover, there is no evidence that the Veteran has experienced episodes of ketoacidosis or hypoglycemic reactions requiring either hospitalization, or twice a month visits to a diabetic care provider. Therefore, there is no probative evidence to support a 40, 60, or 100 percent schedular rating under DC 7913. As the Veteran's diabetes did not require the regulation of activities, were not manifested by episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, and did not require twice a month visits to a diabetic care provider; the Veteran is not entitled to a schedular rating higher than 20 percent at any time during the appeal period. REASONS FOR REMAND Entitlement to service connection for a cardiac disability, to include as due to herbicide exposure or secondary to service-connected diabetes mellitus, type II, is remanded. The Appellant alleges that the Veteran's cardiac disability a right ventricular conduction dleay/incomplete right bundle branch block is secondary to his service-connected diabetes mellitus, type II or herbicide exposure in-service. In January 2021, a VA examiner opined that the Veteran's cardiac disability was not caused by his service-connected diabetes mellitus, type II. However, the examiner failed to offer an opinion regarding aggravation. As such, further development is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's cardiac disability was at least as likely as not aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.