05-00 673

Citation Nr: 1101582
Decision Date: 01/13/11 Archive Date: 01/20/11
DOCKET NO. 05-00 673 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for residuals of shell
fragment wounds of the legs.
2. Entitlement to service connection for peripheral vascular
disease of the lower extremities, to include as secondary to
residuals of shell fragment wounds of the legs.
3. Entitlement to an initial higher (compensable) rating for
prostate cancer.
4. Entitlement to an initial higher (compensable) rating for
erectile dysfunction.
5. Entitlement to service connection for a psychiatric disorder,
to include post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The Veteran had active service from February 1966 to February
1969.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an April 2004 RO rating decision that granted
service connection and a 100 percent rating for prostate cancer
from January 21, 2003 to February 28, 2004, and a noncompensable
rating since March 1, 2004, and granted service connection and a
noncompensable rating for erectile dysfunction, effective January
21, 2003. By this decision, the RO also denied service
connection for the following conditions: PTSD; residuals of
shell fragment wounds of the legs; and peripheral vascular
disease of the lower extremities, to include as secondary to
residuals of shell fragment wounds of the legs.
The Board notes that the Veteran's contentions as to the issue of
entitlement to an initial higher (compensable) rating for
prostate cancer essentially pertain to the evaluation of the
severity of his condition since March 1, 2004, the date a
noncompensable rating was assigned.
In a September 2008 decision, the Board denied the Veteran's
claim for entitlement to service connection for PTSD. The Board
remanded the issues of entitlement to service connection for
residuals of shell fragment wounds of the legs; entitlement to
service connection for peripheral vascular disease of the lower
extremities, to include as secondary to residuals of shell
fragment wounds of the legs; entitlement to an initial higher
(compensable) rating for prostate cancer; and entitlement to an
initial higher (compensable) rating for erectile dysfunction, for
further development.
The Veteran then appealed the Board's decision, as to the issue
of entitlement to service connection for PTSD, to the United
States Court of Appeals for Veterans Claims (Court). In December
2009, the parties (the Veteran and the VA Secretary) filed a
joint motion which requested that the Board's decision as to that
issue be vacated and remanded. A January 2010 Court Order
granted the motion.
The issues of entitlement to service connection for a
psychiatric disorder, to include PTSD, is addressed in the
REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The Veteran does not have residuals of shell fragment wounds
of the legs.
2. The Veteran's peripheral vascular disease was not present
during service or for many years thereafter, and was not caused
by any incident of service. The Veteran also claims service
connection for peripheral vascular disease, to include as
secondary to service-connected residuals of shell fragment wounds
of the legs, but he is not currently service-connected for
residuals of shell fragment wounds of the legs.
3. Since March 1, 2004, the Veteran's service-connected prostate
cancer is manifested by urinary frequency with a daytime voiding
interval between one and two hours, or awakening to void three to
four times per night. His prostate cancer is not manifested by
renal dysfunction.
4. The Veteran's service-connected erectile dysfunction is
manifested by an inability to achieve erections, but without any
deformity.
CONCLUSIONS OF LAW
1. Residuals of shell fragment wounds were not incurred in or
aggravated by service. 38 C.F.R. 1101, 1110, 1112, 1113, 5107
(West 2002); 38 C.F.R. § 3.303 (2009).
2. Peripheral vascular disease was not incurred in or aggravated
by service and service connection for peripheral vascular disease
as secondary to residuals of shell fragment wounds is precluded
by law. 38 C.F.R. 1101, 1110, 1112, 1113, 5107 (West 2002); 38
C.F.R. §§ 3.303, 3.310 (2009).
3. The criteria for an initial rating of 20 percent for prostate
cancer have been met continuously since March 1, 2004. 38
U.S.C.A §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b,
Diagnostic Codes 7527, 7528 (2008).
4. The criteria for an initial higher (compensable) rating for
erectile dysfunction have not been met. 38 U.S.C.A §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 4.20, 4.31, 4.115b, Diagnostic Code
7522 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
Upon receipt of a complete or substantially complete application,
VA must notify the claimant and any representative of any
information, medical evidence, or lay evidence not previously
provided to VA that is necessary to substantiate the claim. This
notice requires VA to indicate which portion of that information
and evidence is to be provided by the claimant and which portion
VA will attempt to obtain on the claimant's behalf. See 38
U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice
should inform the claimant about the information and evidence not
of record that is necessary to substantiate the claim. It should
also inform the claimant about the information and evidence that
VA will seek to provide, and the information and evidence the
claimant is expected to provide. See Pelegrini v. Principi, 18
Vet. App. 112, 120-21 (2004).
Here, the RO sent correspondence in July 2003, a rating decision
in April 2004, a statement of the case in December 2004,
correspondence in January 2005, and correspondence in October
2008. These documents discussed specific evidence, the
particular legal requirements applicable to the claims, the
evidence considered, the pertinent laws and regulations, and the
reasons for the decision. VA made all efforts to notify and to
assist the appellant with regard to the evidence obtained, the
evidence needed, and the responsibilities of the parties in
obtaining the evidence. The Board finds that any defect with
regard to the timing or content of the notice to the appellant is
harmless because of the thorough and informative notices provided
throughout the adjudication and because the appellant had a
meaningful opportunity to participate effectively in the
processing of the claims with an adjudication of the claims by
the RO subsequent to receipt of the required notice. There has
been no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of the
adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006)
(specifically declining to address harmless error doctrine); see
also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has
satisfied its duty to notify the appellant. The case was last
readjudicated in a November 2009 supplemental statement of the
case.
In addition, all relevant, identified, and available evidence has
been obtained, and VA has notified the appellant of any evidence
that could not be obtained. The appellant has not referred to
any additional, unobtained, relevant evidence. VA has also
obtained medical examinations in relation to these claims. Thus,
the Board finds that VA has satisfied both the notice and duty to
assist provisions of the law.
Analysis
I. Residuals of Shell Fragment Wounds of the Legs
Service connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for
a "chronic disease," may be granted if manifest to a
compensable degree within one year of separation from service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease diagnosed
after discharge when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Secondary service connection may be granted for a disability
which is proximately due to, the result of, or aggravated by an
established service-connected disability. 38 C.F.R. § 3.310; see
also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes
that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to
conform with the decision of the United States Court of Appeals
for Veterans Claims (Court) in Allen; however, based upon the
facts in this case the regulatory change does not impact the
outcome of the appeal.
To prevail on the issue of service connection, there must be
medical evidence of a current disability; medical evidence, or in
certain circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable
where the evidence, regardless of its date, shows that the
Veteran had a chronic condition in service or during an
applicable presumption period and still has such condition. Such
evidence must be medical unless it relates to a condition as to
which, under the Court's case law, lay observation is competent.
Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a
condition noted during service is not shown to be chronic, then
generally a showing of continuity of symptomatology after service
is required for service connection. 38 U.S.C.A. § 3.303(b).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the Veteran prevailing in either event,
or whether a preponderance of the evidence is against a claim, in
which case, the claim is denied. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
Further, as a finder of fact, the Board, when considering whether
lay evidence is satisfactory, the Board may also properly
consider internal inconsistency of the statements, facial
plausibility, consistency with other evidence submitted on behalf
of the Veteran, and the Veteran's demeanor when testifying at a
hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007);
Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam,
78 F.3d 604(Fed.Cir.1996).
The Veteran contends that he has residuals of shell fragment
wounds of the legs that are related to his period of service. He
specifically alleges that while on patrol in Vietnam the enemy
fired a rocket and he received shrapnel wounds to, apparently,
both legs.
The Veteran's service personnel records indicate that he was not
awarded decorations evidencing combat, to include the Purple
Heart Medal. He had one year and twenty-seven days of foreign
and/or sea service. His occupational specialty was listed as a
combat engineer. A January 2004 response from the National
Personnel Records Center (NPRC) indicated that the Veteran served
in Vietnam from July 1966 to January 1967 and from March 1967 to
August 1967. His service personnel records also included
notations that he participated in counter-insurgency operations
in the Republic of Vietnam with "III MAF" and that he
participated in Operation Prairie, Phase III, in the Quan Tri
Province of the Republic of Vietnam. He served with various
companies in the 3rd Marine Division and the 9th Marine Division
in Vietnam.
The Veteran's service treatment records do not show complaints,
findings, or diagnoses of any shell fragment wounds, including of
the right and left leg.
The first post-service evidence of record of any possible
residuals of shell fragment wounds is in November 1998, many
years after the Veteran's period of service. This lengthy period
without treatment is evidence against a finding of continuity of
symptomatology, and it weighs heavily against the claim. See
Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330(Fed. Cir. 2000) (service incurrence may be rebutted by the
absence of medical treatment of the claimed condition for many
years after service).
A November 1998 VA general medical examination report noted that
the Veteran was in Vietnam between 1966 and 1968. He stated that
while he was in Vietnam, he was on patrol and the enemy came over
and fired a rocket. The Veteran indicated that he suffered
shrapnel injuries to both the right leg and to the right arm
which resulted in some scar formation, but which were no longer a
bother to him. The diagnoses included peripheral vascular
disease; status post a femoral-popliteal bypass graft on the
right lower extremity with a pending femoral-popliteal bypass
graft on the left lower extremity; prominence of the
anterosuperior margin of the right talus; and radiographically
normal knees. The diagnoses did not refer to any shell fragment
wounds of the legs.
A November 1998 VA orthopedic examination report essentially
related the same information as to the Veteran's military
service. The diagnoses were essentially the same as noted above
and did not refer to any shell fragment wounds. A November 1998
X-ray report, as to the Veteran's knees, related an impression of
radiographically normal knees.
Subsequent post-service private and VA treatment records include
references to shell fragment wounds of the legs.
For example, a March 2003 bone scan report from Mercy Jeannette
Hospital indicated that the Veteran reported that he had an
injury to both lower legs during the Vietnam War and that he had
metallic shrapnel in both lower legs. As to a conclusion, the
examiner noted that the Veteran had "focal increased abnormal
signal intensity in both lower legs, most likely related to
injury from Vietnam War with shrapnel in both lower
extremities." It was also reported that the remaining axial
skeletal system appeared normal with no bone metastasis
identified.
An April 2004 VA psychiatric examination report noted that the
Veteran reported that he was hit in both legs by shell fragments
from a rocket attack near Dong Ha, although he did not know
exactly when such occurred. The diagnoses referred to other
disorders.
An April 2004 consultation report from Mercy Jeannette Hospital
noted, as to history, that the Veteran reported that he had a
Vietnam War injury in the lower leg with fragments of metal left
in. As to the Veteran's extremities, the examiner reported that
the pulses were decreased. The examiner indicated that the
Veteran had a history of bypass surgeries in July 1998, December
1998, and July 2000, by a private physician, and that the last
surgery was a bilateral aorto femoral bypass. No diagnoses were
provided at that time.
A July 2009 VA arteries, veins, and miscellaneous examination
report indicated that the Veteran's claims file was reviewed.
The Veteran reported that he suffered shrapnel wounds to the
bilateral lower extremities during combat. The examiner noted
that such information was not documented and that the Veteran did
not give a specific time for the shrapnel wounds. The examiner
indicated that they would have occurred during his service time
between "1965-1972", per the Veteran. The Veteran stated that
approximately ten years ago, he began to have symptoms of
peripheral vascular disease and that the condition had worsened
during that time. It was noted that the Veteran underwent a
femoral popliteal bypass in the right leg in 1998 and repeat
right femoral popliteal bypass and a right to left bypass in 2000
and 2001, respectively. The Veteran reported that the surgeries
had only slightly improved his circulation by approximately 20
percent and that he had decreased circulation to his extremities.
He indicated that the skin on his feet became very light, or
pale, and that his present symptoms included pain that increased
with walking. He remarked that he had numbness with occasional
sharp pain and cramping.
The Veteran reported that ten years earlier, his pain was
intermittent with numbness, and only occasional sharp pain. He
stated that it would increase with walking and cramping. He
stated that, presently, his pain could happen spontaneously at
any time. It was noted that there were no known exacerbating or
alleviating factors other than that increased walking could bring
on the symptoms. The Veteran reported that he was not currently
being treated for his peripheral vascular disease other than with
medication management without side-effects. He indicated that he
had general fatigue otherwise and that he continued to have
recurrent symptoms after his surgeries. The Veteran stated that
in general his condition was in the lowered extremities below the
knees. The examiner noted that previous records reported calf
pain with ambulating. It was noted that the Veteran did not have
a history of varicosities.
The examiner reported that the Veteran did not have muscle loss
from his claimed shrapnel injuries and that, again, he did not
give a specific date of onset. The examiner indicated that the
Veteran did not report any flare-ups of muscle injuries, no
severity, no duration, and no precipitating or alleviating
factors. The examiner stated that the Veteran did not report any
limitation of motion or functional impairment. The examiner also
reported that the Veteran did not report any current muscle pain.
The examiner indicated that the Veteran reported primarily that
he had shrapnel injuries to the front of the lower extremities.
The examiner stated that the Veteran was unable to point out any
scarring from the shrapnel. The examiner reported that there was
no scarring visualized to the anterior and posterior lower
extremities below the knees and between the knees and the ankles.
The examiner remarked that there was no muscle tendon loss, no
obvious deformities, and no anterior exit wounds. It was noted
that there was no apparent bone, joint, or nerve damage, and no
muscle herniation. The examiner indicated that the Veteran had
normal muscle strength and no loss of muscle function. The
examiner related that the Veteran had trace edema of the right
ankle, with none to the left. It was noted that there was no
painful scarring and no skin breakdown due to know scarring. The
examiner indicated that she was unable to determine depth,
underlying soft tissue damage, limitation of motion, or other
limitation of function because there was no scarring. The
examiner further remarked that she was unable to determine
inflammation, edema, keloid formation, length/width, adherence to
underlying tissue, depression, elevation to palpation, abnormal
texture, pigmentation, induration or inflexibility, or underlying
tissue loss on scars that did not exist. An X-ray, as to the
Veteran's bilateral tibia and fibula, related an impression of no
radiographic abnormality identified in the left or right tibia
and fibula.
As to diagnoses, the examiner indicated that shell fragment
wounds of the lower extremities between the ankles and the knees
were not established at that time. The examiner stated that
"there [was] no medical evidence, no evidence per claims file
review, [and] no visualized scarring." The examiner commented
that "any peripheral vascular disease of the lower extremities
would not be secondary to shell fragment wound since no evidence
is found. Most likely secondary to Veteran's history of smoking,
hyperlipidemia, and alcohol intake." The examiner further
indicated that shell fragment wounds of the bilateral lower
extremities were not found at that time. The examiner stated
that there was no medical evidence of shell fragment wounds, no
muscle tissue loss, no visualized scarring, and no retained
fragments found on X-ray.
In evaluating the probative value of competent medical evidence,
the United States Court of Appeals for Veterans Claims
(hereinafter Court) has stated, in pertinent part:
The probative value of medical opinion
evidence is based on the medical expert's
personal examination of the patient, the
physician's knowledge and skill in
analyzing the data, and the medical
conclusion that the physician reaches. . .
. As is true with any piece of evidence,
the credibility and weight to be attached
to these opinions [are] within the province
of the adjudicators; . . .
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
As stated by the Court, the determination of credibility is the
province of the Board. It is not error for the Board to favor
the opinion of one competent medical expert over that of another
when the Board gives an adequate statement of reasons or bases.
See Owens v. Brown, 7 Vet. App. 429, 433 (1995).
As stated above, there are no personnel records or medical
records or record of examination from the Veteran's period of
service ending in 1969, that document any shell fragment wounds
to the legs. No complaints or findings of such are reported for
nearly 30 years after service.
While the Veteran has given a history of shell fragment wound in
the legs, the Board doubts the credibility of this history. In
addition to the lack of any supporting evidence from service or
for nearly three decades after service, the Board is keenly aware
of the fact that medical professionals have only started
including a history of shell fragment wounds in documents since
the Veteran reported that history in 1998. The Board finds it
pertinent, however, that despite the Veteran's reports of a
history of shell fragment wounds to the legs, medical
professionals have not found any objective evidence of such.
The Board observes that a November 1998 VA general medical
examination report noted that the Veteran reported that while he
was in Vietnam, he was on patrol and the enemy came over and
fired a rocket. The Veteran indicated that he suffered shrapnel
injuries to both the right leg and to the right arm which
resulted in some scar formation, but which were no longer a
bother to him. The diagnoses did not refer to any shell fragment
wounds of the legs. Additionally, a November 1998 VA orthopedic
examination report essentially related the same information as to
the Veteran's military service. The diagnoses did not refer to
any shell fragment wounds. Further, the Board notes that an
April 2004 psychiatric examination report noted that the Veteran
reported that he was hit in both legs by shell fragments from a
rocket attack near Dong Ha, although he did not know exactly when
such occurred. The diagnoses referred to other disorders. Also,
an April 2004 consultation report from Mercy Jeannette Hospital
noted, as to history, that the Veteran reported that he had a
Vietnam War injury in the lower leg with fragments of metal left
in. The Board observes that the Veteran's statements above
indicating that he suffered shell fragment wounds during his
period of service were nothing more than a recitation of his
belief. This recited history of shell fragment wound to the legs
has not been supported by any objective medical findings. As
such, any repetitions of these statements by doctors reciting a
reported medical history, are not probative in linking any the
Veteran's claimed residuals of shell fragment wounds of the legs
with his period of service. See LeShore v. Brown, 8 Vet. App.
406, 409 (1995) (a bare transcription of a lay history is not
transformed into competent medical evidence merely because the
transcriber is a medical professional).
Additionally, the Board notes that a March 2003 bone scan report
from Mercy Jeannette Hospital indicated that the Veteran reported
that he had an injury to both lower legs during the Vietnam War
and that he had metallic shrapnel in both lower legs. As to a
conclusion, the examiner noted that the Veteran had "focal
increased abnormal signal intensity in both lower legs, most
likely related to injury from Vietnam War with shrapnel in both
lower extremities." It was also reported that the remaining
axial skeletal system appeared normal with no bone metastasis
identified. The Board observes that there is no indication that
the examiner reviewed the Veteran's claims file in providing the
opinion that the Veteran had focal increased abnormal signal
intensity in the lower legs related to shrapnel injuries in both
lower extremities from the Vietnam War. Although an examiner can
render a current diagnosis based on his examination of a
claimant, without a thorough review of the record, his opinion
regarding etiology if based on facts reported by the claimant can
be no better than the facts alleged by the claimant. See Swann
v. Brown, 5 Vet. App. 229 (1993). Additionally, the Board
observes that without a review of the claims file in this case,
an examiner is unable to review the positive and negative
opinions of record addressing the etiology of the Veteran's
alleged shell fragment wounds, as well as the Veteran's medical
history, and thereby provide a fully informed opinion. See also
Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these
circumstances, the opinion provided pursuant to the March 2003
bone scan report from Mercy Jeannette Hospital has no probative
value in this matter.
Conversely, the Board observes that the July 2009 VA arteries,
veins, and miscellaneous examination report indicated that the
Veteran's claims file was reviewed. The examiner had the
opportunity to review service treatment records and all records
on file and see firsthand that the records showed no
documentation of shell fragment wounds to the legs. As to
diagnoses, the examiner indicated that shell fragment wounds of
the lower extremities between the ankles and the knees were not
established at that time. The examiner stated that "there [was]
no medical evidence, no evidence per claims file review, [and] no
visualized scarring." The examiner commented that "any
peripheral vascular disease of the lower extremities would not be
secondary to shell fragment wound since no evidence is found.
Most likely secondary to Veteran's history of smoking,
hyperlipidemia, and alcohol intake." The examiner further
indicated that shell fragment wounds of the bilateral lower
extremities were not found at that time. The examiner stated
that there was no medical evidence of shell fragment wounds, no
muscle tissue loss, no visualized scarring, and no retained
fragments found on X-ray. The Board notes that the VA examiner
reviewed the Veteran's entire claims file, discussed his medical
history, and provided rationales for her opinions. Therefore,
the Board finds that the VA examiner's opinions are the most
probative in this matter. See Wensch v. Principi, 15 Vet. App.
362 (2001).
Further, in its role as a finder of fact, the Board observes that
the Veteran has inconsistently reported suffering shrapnel wounds
to his right leg and right arm pursuant to November 1998 VA
examination reports, and then reporting shrapnel wounds to the
front of both legs at the July 2009 VA arteries, veins, and
miscellaneous examination. Also, the Veteran's service treatment
records show no evidence of any shell fragment wounds and his
service personnel records do not show that he received the Purple
Heart Medal. Thus, the credibility and probative value of his
accounts regarding the alleged shell fragment wounds is
undermined. See Dalton, Caluza, supra. Simply put, the Board
does not find the Veteran's statements credible in light of the
lack of objective findings of shell fragment wounds during
service, the lack of comment regarding such for nearly 30 years
after service, and the specific findings by a medical
professional in 2009 as to the complete absence of medical
evidence of shell fragment wounds.
The Board finds that the evidence fails to show any residuals of
shell fragment wounds of the legs.
Congress specifically limits entitlement for service- connected
disease or injury to cases where such incidents have resulted in
a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of
proof of present disability there can be no valid claim. Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v.
Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires
existence of present disability for VA compensation purposes);
see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Here,
the evidence indicates no present residual of shell fragment
wounds of the legs, and thus service connection is not warranted.
The Veteran has alleged that he has residuals of shell fragment
wounds of the legs had their onset in service. As a lay person,
however, the Veteran is not competent to give a medical opinion
on the diagnosis or etiology of a condition. See Bostain v.
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski,
2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of opining
on matters requiring medical knowledge"). The Board observes
that the Veteran is competent to report that he suffered injuries
or shell fragment wounds to his legs during service, but, as
discussed above, the Board finds that his statements in that
regard are not credible. See Dalton, Caluza, supra.
In short, there is no documentation of treatment during service
for shell fragment wounds of the legs, and no probative post-
service diagnoses of residuals of shell fragment wounds. There
is no basis with which to tie current complaints of residuals of
shell fragment wounds of the legs to service. As the
preponderance of the evidence is against a finding that the
Veteran currently suffers from residuals of malaria, the claim
must be denied. 38 .S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
II. Peripheral Vascular Disease of the Lower Extremities
The Veteran contends that he has peripheral vascular disease that
is related to his period of service, or, more specifically, that
is related to his residuals of shell fragment wounds of the legs.
The Veteran's service treatment records do not show complaints,
findings, or diagnoses of peripheral vascular disease of the
lower extremities.
The first post-service evidence of record of any peripheral
vascular disease of the lower extremities is in November 1998,
many years after the Veteran's period of service. This lengthy
period without treatment is evidence against a finding of
continuity of symptomatology, and it weighs heavily against the
claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd,
230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be
rebutted by the absence of medical treatment of the claimed
condition for many years after service).
A November 1998 VA general medical examination report noted that
the Veteran was in Vietnam between 1966 and 1968. He stated that
while he was in Vietnam, he was on patrol and the enemy came over
and fired a rocket. The Veteran indicated that he suffered
shrapnel injuries to both the right leg and to the right arm
which resulted in some scar formation, but which were no longer a
bother to him. He indicated that he had a femoral popliteal
bypass graft done in July 1998 on the right side. The diagnoses
included peripheral vascular disease; status post a femoral-
popliteal bypass graft on the right lower extremity with a
pending femoral-popliteal bypass graft on the left lower
extremity; prominence of the anterosuperior margin of the right
talus; and radiographically normal knees. The diagnoses did not
refer to any shell fragment wounds of the legs.
A November 1998 VA orthopedic examination report essentially
related the same information as to the Veteran's military
service. The diagnoses were essentially the same as noted above
and did not refer to any shell fragment wounds.
Post-service private and VA treatment records show treatment for
peripheral vascular disease of the lower extremities on numerous
occasions.
A March 2003 bone scan report from Mercy Jeannette Hospital
indicated that the Veteran reported that he had an injury to both
lower legs during the Vietnam War and that he had metallic
shrapnel in both lower legs. As to a conclusion, the examiner
noted that the Veteran had "focal increased abnormal signal
intensity in both lower legs, most likely related to injury from
Vietnam War with shrapnel in both lower extremities." It was
also reported that the remaining axial skeletal system appeared
normal with no bone metastasis identified.
A July 2009 VA arteries, veins, and miscellaneous examination
report indicated that the Veteran's claims file was reviewed.
The examination report was discussed in detail pursuant to the
issue determined above. As to diagnoses, the examiner indicated
that shell fragment wounds of the lower extremities between the
ankles and the knees were not established at that time. The
examiner stated that "there [was] no medical evidence, no
evidence per claims file review, [and] no visualized scarring."
The examiner commented that "any peripheral vascular disease of
the lower extremities would not be secondary to shell fragment
wound since no evidence is found. Most likely secondary to
Veteran's history of smoking, hyperlipidemia, and alcohol
intake."
In evaluating the probative value of competent medical evidence,
the United States Court of Appeals for Veterans Claims
(hereinafter Court) has stated, in pertinent part:
The probative value of medical opinion
evidence is based on the medical expert's
personal examination of the patient, the
physician's knowledge and skill in
analyzing the data, and the medical
conclusion that the physician reaches. . .
. As is true with any piece of evidence,
the credibility and weight to be attached
to these opinions [are] within the province
of the adjudicators; . . .
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
As stated by the Court, the determination of credibility is the
province of the Board. It is not error for the Board to favor
the opinion of one competent medical expert over that of another
when the Board gives an adequate statement of reasons or bases.
See Owens v. Brown, 7 Vet. App. 429, 433 (1995).
The Board notes that a March 2003 bone scan report from Mercy
Jeannette Hospital indicated that the Veteran reported that he
had an injury to both lower legs during the Vietnam War and that
he had metallic shrapnel in both lower legs. As to a conclusion,
the examiner noted that the Veteran had "focal increased
abnormal signal intensity in both lower legs, most likely related
to injury from Vietnam War with shrapnel in both lower
extremities." It was also reported that the remaining axial
skeletal system appeared normal with no bone metastasis
identified. Although the report did not specifically refer to
peripheral vascular disease, it did indicate a possible
relationship between current additional leg problems and shell
fragment wounds of the legs. The Board observes, however, that
there is no indication that the examiner reviewed the Veteran's
claims file in providing the opinion that the Veteran had focal
increased abnormal signal intensity in the lower legs related to
shrapnel injuries in both lower extremities from the Vietnam War.
Although an examiner can render a current diagnosis based on his
examination of a claimant, without a thorough review of the
record, his opinion regarding etiology if based on facts reported
by the claimant can be no better than the facts alleged by the
claimant. See Swann v. Brown, 5 Vet. App. 229 (1993).
Additionally, the Board observes that without a review of the
claims file in this case, an examiner is unable to review the
Veteran's medical history, and thereby provide a fully informed
opinion. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295(2008). Given these circumstances, the opinion provided pursuant
to the March 2003 bone scan report from Mercy Jeannette Hospital
is not credible and has no probative value in this matter.
Conversely, the Board notes that the July 2009 VA arteries,
veins, and miscellaneous examination report indicated that the
Veteran's claims file was reviewed. As to diagnoses, the
examiner indicated that shell fragment wounds of the lower
extremities between the ankles and the knees were not established
at that time. The examiner stated that "there [was] no medical
evidence, no evidence per claims file review, [and] no visualized
scarring." The examiner commented that "any peripheral
vascular disease of the lower extremities would not be secondary
to shell fragment wound since no evidence is found. Most likely
secondary to Veteran's history of smoking, hyperlipidemia, and
alcohol intake." The Board notes that the VA examiner reviewed
the Veteran's entire claims file, discussed his medical history,
and provided rationales for her opinions. Therefore, the Board
finds that the VA examiner's opinions are the most probative in
this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001).
The Board observes that the probative medical evidence does not
suggest that the Veteran's current peripheral vascular disease of
the lower extremities is related to his period of service. In
fact, the probative medical evidence provides negative evidence
against this finding, indicating that the Veteran's current
peripheral vascular disease of the lower extremities began many
years after his period of service, without any relationship to
any incident of service.
The Veteran has alleged that his current peripheral vascular
disease had its onset during his period of service, specifically
as a shell fragment wounds. As a layperson, however, the Veteran
is not competent to give a medical opinion on the diagnosis or
etiology of a condition. See Bostain v. West, 11 Vet. App. 124,
127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge"). Additionally, as noted in the
discussion of the issue above, the Board finds the Veteran's
statements that he suffered shell fragment wounds during service
to not be credible. See Dalton, Caluza, supra.
Additionally, the Board notes that the Veteran is also attempting
to establish service connection for peripheral vascular disease
of the lower extremities as secondary to residuals of shell
fragment wounds of the legs. The Board notes that secondary
service connection presupposes the existence of an established
service-connected disability. Residuals of shell fragment wounds
of the legs are not currently service-connected, and thus, there
can be no secondary service connection for any condition
allegedly due to residuals of shell fragment wounds of the legs.
Where the law and not the evidence is dispositive, a claim must
be denied because of the absence of legal merit or lack of
entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426(1994). Since there is no legal basis for an award of secondary
service connection for peripheral vascular disease of the lower
extremities, as a matter of law the claim on that basis must be
denied. Sabonis, supra.
The weight of the competent evidence demonstrates that the
Veteran's peripheral vascular disease of the lower extremities
began many years after his period of service and that it was not
caused by any incident of service. This condition was neither
incurred in nor aggravated by service. As the preponderance of
the evidence is against the claim, the benefit-of-the-doubt rule
does not apply, and the claim for service connection for
peripheral vascular disease of the lower extremities, must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
III. Prostate Cancer
Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average impairment of
earning capacity resulting from disability. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Disabilities must be reviewed in relation to
their history. 38 C.F.R. § 4.1. The Board interprets 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. See
38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of
disability will 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 will be assigned where the
disability picture more nearly approximates the criteria for the
next higher rating. 38 C.F.R. § 4.7. The Board will evaluate
functional impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary activity.
See 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
In general, the degree of impairment resulting from a disability
is a factual determination and generally the Board's primary
focus in such cases is upon the current severity of the
disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994);
Solomon v. Brown, 6 Vet. App. 396, 402 (1994). A recent decision
of the Court has held that in determining the present level of
disability for any increased evaluation claim, the Board must
consider the application of staged ratings. See Hart v.
Mansfield, 21 Vet. App. 505 (2007). In other words, where the
evidence contains factual findings that demonstrate distinct time
periods in which the service-connected disability exhibited
diverse symptoms meeting the criteria for different ratings
during the course of the appeal, the assignment of staged ratings
would be necessary. In Fenderson v. West, 12 Vet. App. 119(1999), it was held that the rule from Francisco does not apply
where the appellant has expressed dissatisfaction with the
assignment of an initial rating following an initial award of
service connection for that disability. Rather, from the time of
an initial rating, separate ratings can be assigned for separate
periods of time based on the facts found - a practice known as
"staged" ratings.
The RO has rated the Veteran's residuals of prostate cancer under
Diagnostic Code
7528, which pertains to malignant neoplasms of the genitourinary
system and provides for up to a 100 percent disability rating.
It also provides 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. 38 C.F.R. § 4.115b.
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 such as voiding
dysfunction or renal dysfunction, whichever is predominant. Only
the predominant area of dysfunction is to be considered for
rating purposes to avoid violating the rule against the
pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a.
The Veteran was assigned an initial 100 percent rating for
residuals of prostate cancer from January 21, 2003 to February
28, 2004, and a noncompensable (0 percent) rating since March 1,
2004 contentions pertain to the evaluation of the severity of the
condition since March 1, 2004.
The Veteran has not had any active malignancy since March 1,
2004. 38 C.F.R. § 4.115b. As the Veteran has not had any active
malignancy since that time, the Board finds that an assignment of
a 100 percent disability rating under Diagnostic Code 7528 for
the Veteran's residuals of prostate cancer would not be
appropriate at any point since March 1, 2004. Accordingly, his
disability will be rated on residuals such as voiding dysfunction
or renal dysfunction.
Voiding dysfunction is rated under the three subcategories of
urine leakage, urinary frequency, and obstructed voiding. 38
C.F.R. § 4.115a.
Evaluation under urine leakage involves ratings ranging from 20
to 60 percent and contemplates continual urine leakage, post-
surgical urinary diversion, urinary incontinence, or stress
incontinence. When these factors require the use of an appliance
or the wearing of absorbent materials which must be changed more
than four times per day, a 60 percent evaluation is warranted.
When there is leakage requiring the wearing of absorbent
materials which must be changed two to four times per day, a 40
percent disability rating is warranted. A 20 percent rating
contemplates leakage requiring the wearing of absorbent materials
which must be changed less than two times per day. 38 C.F.R. §
4.115a.
Urinary frequency encompasses ratings ranging from 10 to 40
percent. A 40 percent rating contemplates a daytime voiding
interval less than one hour, or awakening to void five or more
times per night. A 20 percent rating contemplates daytime
voiding interval between one and two hours, or awakening to void
three to four times per night. A 10 percent rating contemplates
daytime voiding interval between two and three hours, or
awakening to void two times per night. 38 C.F.R. § 4.115a.
Finally, obstructed voiding entails ratings ranging from
noncompensable to 30 percent. A 30 percent rating contemplates
urinary retention requiring intermittent or continuous
catheterization. A 10 percent rating contemplates 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 cubic
centimeters (cc's); (2) uroflowmetry; markedly diminished peak
flow rate (less than 10 cc's per second); (3) recurrent urinary
tract infections secondary to obstruction; (4) stricture disease
requiring periodic dilatation every two to three months. A
noncompensable rating contemplates obstructive symptomatology
with or without stricture disease requiring dilatation one to two
times per year. 38 C.F.R. § 4.115a.
Urinary tract infections requiring drug therapy, one to two
hospitalizations per year and/or requiring intermittent intensive
management warrant a 10 percent evaluation. A 30 percent rating
is warranted for recurrent symptomatic infections requiring
drainage/frequent hospitalization (greater than two times per
year), and/or requiring continuous intensive management. Where
urinary tract infections result in poor renal function, the
disability is to be evaluated as poor renal function. 38 C.F.R.
§ 4.115a.
Renal dysfunction manifested by constant or recurring albumin
with hyaline and granular casts or red blood cells, or transient
or slight edema or hypertension at least 10 percent disabling
under diagnostic code 7101 warrants a 30 percent evaluation.
Renal dysfunction resulting in albuminuria with some edema, or
definite decrease in kidney function, or hypertension at least 40
percent disabling under diagnostic code 7101 warrants a 60
percent evaluation. Renal dysfunction manifested by persistent
edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to
8mg%, or generalized poor health characterized by lethargy,
weakness, anorexia, weight loss, or limitation of exertion,
warrants an 80 percent evaluation. Finally, renal dysfunction
that requires regular dialysis, or precludes more than sedentary
activity from one of the following: persistent edema and
albuminuria; or BUN more than 80mg%; or creatinine more than
8mg%; or markedly decreased function of kidney or other organ
systems, especially cardiovascular, warrants a 100 percent
evaluation. 38 C.F.R. § 4.115a.
The medical evidence associated with the claims file does not
reflect that the Veteran has experienced renal dysfunction or
recent urinary tract infections. Accordingly, the Board
concludes that voiding dysfunction is the Veteran's predominant
complaint.
An April 2004 VA genitourinary examination report noted that the
Veteran was found to have a prostate-specific antigen (PSA) of
4.62 in February 2003 and that he was also felt to have at least
a unilateral, if not bilateral, abnormality on a rectal
examination of the prostate. It was reported that the Veteran
underwent a needle biopsy in March 2003, which showed a Gleason
sum of 5+4=9, on the left. The examiner indicated that a staging
bone scan, computed tomography scan, and chest X-ray were
negative for metastatic disease. The examiner stated that
because of the high Gleason score, the Veteran elected to undergo
radiation therapy. The Veteran reported that prior to his
radiation therapy, he did have some symptoms of a weak urinary
stream, but he denied that he had any dysuria or hematuria. The
Veteran indicated that, presently, he believed that he generally
emptied well. He denied that he had any incontinence and he
stated that he did not require a pad. The Veteran remarked that
he had not had any erection since his radiation therapy. It was
noted that an April 2004 PSA was 1.2.
The examiner reported that the Veteran's genitourinary
examination showed a normal penis without probable plaques or
urethral discharge. The examiner stated that the Veteran's
testicles were descended, bilaterally, and that they were
nontender to palpation. The examiner indicated that the Veteran
had no palpable inguinal adenopathy or inguinal hernia. It was
noted that the Veteran refused a rectal examination. As to an
assessment, the examiner indicated that the Veteran had clinical
T2b2 T2c disease prior to his radiation therapy. The examiner
noted that the Veteran's PSA had declined from 4.6 to a 0.5
nadir, with the most recent PSA of 1.2 in April 2004. The
examiner commented that the Veteran did not have any problems
with urinary control and that he did not have any erections at
that time.
Private treatment records dated from April 2004 to May 2008 show
treatment for multiple disorders.
The most recent July 2009 VA arteries, veins, and miscellaneous
examination report noted that the Veteran reported that he was
not employed currently and that he previously worked as a truck
driver. The Veteran indicated that he was on disability for
approximately the last ten years due mainly to his circulation in
his legs, which interfered with his ability to work. He stated
that he was diagnosed and treated for prostate cancer six years
ago. He reported that he received forty-nine radiation
treatments, five days a week, until the treatment was completed.
The Veteran indicated that he had received no additional
treatment since that time other than for follow-ups with PSA
studies, which had been within normal limits.
The examiner indicated that the Veteran was not reporting
lethargy, weakness, anorexia, or weight loss. The examiner
reported that the Veteran did have nighttime urination every two
hours and daytime urination every two hours, more or less
depending on fluid intake. It was noted that the Veteran stated
that he had occasional hesitancy, but that he denied any urine
stream abnormalities. The examiner indicated that the Veteran
denied that he had any dysuria or hematuria. The examiner
reported that the Veteran denied that he had any incontinence of
urine, and that he had not undergone any surgery to any part of
his urinary tract. The examiner stated that the Veteran denied
that he had recurrent urinary tract infections, renal colic,
bladder stones, or acute nephritis. It was also noted that the
Veteran denied that he had any hospitalizations for urinary tract
disease, and that he denied that he had any neoplasms, cancers,
or abnormalities of the penis, testicles, or scrotum. The
examiner indicated that the Veteran did report erectile
dysfunction, which started approximately one year prior to his
diagnosis of prostate cancer. The examiner noted that the
Veteran indicated that he had decreased function in the beginning
in 2001, and no erectile function at all presently. The Veteran
reported that he had not tried any medications because he was not
eligible due to his heart condition. The examiner stated that a
July 2008 PSA was normal at 0.51. The diagnoses included
prostate cancer, treated, in remission, with residual erectile
dysfunction.
Viewing all the evidence, the Board finds that continuously since
March 1, 2004, there is a reasonable basis for finding that the
criteria for a 20 percent rating for the Veteran's prostate
cancer are met. As noted above, the medical evidence indicates
that voiding dysfunction is the Veteran's predominant complaint
regarding his residuals of prostate cancer. The Board observes
that the Veteran does not have renal dysfunction or any recent
urinary infections. The Board notes, however, that the Veteran
has been shown to have voiding dysfunction, or more specifically,
urinary frequency. The most recent July 2009 VA arteries, veins,
and miscellaneous examination report noted that the Veteran did
have nighttime urination every two hours and daytime urination
every two hours, more or less depending on fluid intake. The
examiner also reported that the Veteran stated that he had
occasional hesitancy, but that he denied any urine stream
abnormalities. The Board observes that the April 2004 VA
genitourinary examination report noted that the Veteran stated
that prior to his radiation therapy, he did have some symptoms of
a weak urinary stream, but he denied that he had any dysuria or
hematuria. The Veteran indicated that, presently, he believed
that he generally emptied well. The Board notes that the April
2004 VA genitourinary examination report did not specifically
provide information as to the Veteran's urinary frequency. The
Board notes, therefore, that pursuant to the July 2009 VA
arteries, veins, and miscellaneous examination report, there is
evidence that the Veteran has urinary frequency with a daytime
voiding interval between one and two hours, or awakening to void
three to four times per night, as required for a 20 percent
rating pursuant to 38 C.F.R. § 4.115a.
The Board observes that the evidence does not indicate that the
Veteran has a daytime voiding interval of less than one hour, or
awakening to void five or more times per night as required for a
40 percent rating pursuant to 38 C.F.R. § 4.115a. Additionally,
there is no evidence of continual urine leakage or urinary
incontinence requiring the wearing of absorbent materials which
must be changed two to four times per days as required for a
higher 40 percent rating pursuant to the criteria for urine
leakage under 38 C.F.R § 4.115a. Further, the criteria as to
obstructive voiding and urinary tract infections are not
applicable in this case because the Veteran does not have such
symptomatology. See 38 C.F.R. § 4.115a.
As this is an initial rating case, consideration has been given
to "staged ratings" (different percentage ratings for different
periods of time, since the effective date of service connection,
based on the facts found). Fenderson v. West, 12 Vet.App. 119(1999). However, staged ratings are not indicated in the present
case, as the Board finds the Veteran's residuals of prostate
cancer have continuously been 20 percent disabling since March 1,
2004, when the Veteran's 100 percent rating was reduced to a
noncompensable (0 percent) rating.
The Board has also considered whether the record raises the
matter of extraschedular ratings under 38 C.F.R. § 3.321(b)(1)
(2009). The evidence does not reflect that the Veteran's
prostate cancer, alone, has caused marked interference with
employment (i.e., beyond that already contemplated in the
assigned rating), or necessitated frequent periods of
hospitalization, such that application of the regular schedular
standards is rendered impracticable. Based on the foregoing, the
Board finds that referral for consideration of assignment of
extra-schedular ratings is not warranted. 38 C.F.R. §
3.3219(b)(1).
Thus, an increased rating to 20 percent, continuously since March
1, 2004, for prostate cancer, is granted. The Board has
considered the benefit-of-the-doubt rule in making the current
decision. 38 U.S.CA. § 5107(b); Gilbert v. Derwinski, 1 Vet.App.
49 (1990).
IV. Erectile Dysfunction
When a condition is not listed in the schedule, it will be
permissible to rate it under a closely-related disease or injury
in which not only the functions affected, but also the anatomical
localization and symptomatology are closely analogous. 38 C.F.R.
§ 4.20 (2009). The Veteran's service- connected erectile
dysfunction may be rated by analogy to penis deformity, with loss
of erectile power. 38 C.F.R. §§ 4.20, 4.115(b) Diagnostic Code
7522 (2009). The Board can identify no more appropriate
diagnostic code and the Veteran has not identified one. See
Butts v. Brown, 5 Vet. App. 532, 538 (1993).
Diagnostic Code 7522 provides a single 20 percent rating where
the evidence shows deformity of the penis with loss of erectile
power. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. When the
requirements for a compensable rating of a diagnostic code are
not shown, a 0 percent rating is assigned. 38 C.F.R. § 4.31.
The RO has assigned a noncompensable (0 percent rating) for
erectile dysfunction, effective January 21, 2003 (the effective
date of service connection). The Board notes that the Veteran
has also been granted special monthly compensation based on loss
of use of a creative organ, due to erectile dysfunction.
The relevant medical evidence regarding the Veteran's service-
connected erectile dysfunction was reported pursuant the
discussion of the issue of entitlement to a higher rating for
prostate cancer, noted above.
The medical evidence does not show any penile deformity.
Although there is evidence of the Veteran reporting an inability
to achieve and/or maintain erections, there is essentially no
evidence of any testicular or penile deformities. Absent
evidence of penile deformity, even though there is erectile
dysfunction, a compensable rating is not warranted under
Diagnostic Code 7522. As the requirements for a compensable
rating under Diagnostic Code 7522 are not met, a noncompensable
(0 percent) rating is proper pursuant to 38 C.F.R. § 4.31.
This is an initial rating case, on the granting of service
connection. The Board finds that there are no distinct periods
of time, since the effective date of service connection, during
which the Veteran's erectile dysfunction has been more than 0
percent disabling. Thus "staged ratings" greater than a 0
percent rating are not warranted for any period of time since the
effective date of service connection. Fenderson v. West, 12
Vet.App. 119 (1999).
The Board has also considered whether the record raises the
matter of extraschedular ratings under 38 C.F.R. § 3.321(b)(1)
(2009). The evidence does not reflect that the Veteran's
erectile dysfunction, alone, has caused marked interference with
employment (i.e., beyond that already contemplated in the
assigned rating), or necessitated frequent periods of
hospitalization, such that application of the regular schedular
standards is rendered impracticable. Based on the foregoing, the
Board finds that referral for consideration of assignment of
extra-schedular ratings is not warranted. 38 C.F.R. §
3.3219(b)(1).
As the preponderance of the evidence is against the claim for a
higher (compensable) rating for erectile dysfunction, the
benefit-of-the-doubt rule does not apply, and the claim must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App.
49 (1990).
ORDER
Service connection for residuals of shell fragment wounds of the
legs is denied.
Service connection for peripheral vascular disease of the lower
extremities is denied.
A higher rating of 10 percent, but not greater, is granted for
prostate cancer continuously since March 1, 2004, subject to the
laws and regulations governing the disbursement of monetary
benefits.
An initial higher (compensable) rating for erectile dysfunction
is denied.
REMAND
The remaining issue on appeal is entitlement to service
connection for a psychiatric disorder, to include PTSD. The
Board finds that there is a further VA duty to assist the Veteran
in developing evidence pertinent to those claims. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159.
Service connection for PTSD requires medical evidence diagnosing
the condition in accordance with 38 C.F.R. § 4.125(a) [i.e. under
the criteria of DSM-IV]; a link, established by medical evidence,
between current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. If the evidence establishes that the Veteran engaged
in combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence to
the contrary, and provided the claimed stressor is consistent
with the circumstances, conditions, or hardships of the Veteran's
service, the Veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R.
§ 3.304(f).
When the evidence does not establish that a veteran is a combat
veteran, his assertions of service stressors are not sufficient
to establish the occurrence of such events. Rather his alleged
service stressors must be established by official service record
or other credible supporting evidence. 38 C.F.R. § 3.304(f);
Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West,
12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997);
Doran v. Brown, 6 Vet. App. 283 (1994).
The Veteran claims service connection for a psychiatric disorder,
to include PTSD, as a result of his period of service. His
service personnel records indicate that he was not awarded
decorations evidencing combat. He had one year and twenty-seven
days of foreign and/or sea service. His occupational specialty
was listed as a combat engineer. A January 2004 response from
the National Personnel Records Center (NPRC) indicated that the
veteran served in Vietnam from July 1966 to January 1967 and from
March 1967 to August 1967. His service personnel records also
included notations that he participated in counter-insurgency
operations in the Republic of Vietnam with "III MAF" and that
he participated in Operation Prairie, Phase III, in the Quan Tri
Province of the Republic of Vietnam. He served with various
companies in the 3rd Marine Division and the 9th Marine Division
in Vietnam.
The Veteran's service medical records do not show complaints,
findings, or diagnoses of PTSD or any other psychiatric problems.
Evaluations of the Veteran during that time make no reference to
any such disorders.
Post-service private and VA treatment records show treatment for
disorders including psychiatric problems. There is no evidence
of treatment for PTSD.
The Veteran has reported various stressors. A November 1998 RO
general medical examination report noted that the Veteran was in
Vietnam between 1966 and 1968. He reported that he was in an
infantry division and that he served all over Vietnam. He stated
that while he was in Vietnam, he was on patrol and the enemy came
over and fired a rocket. The Veteran indicated that he suffered
shrapnel injuries to the right leg and to the right arm which
resulted in some scar formation, but which was no longer a bother
to him. He reported that he was involved in five combat
situations while he was in Vietnam and that he was wounded. The
diagnoses did not refer to any shell fragment wounds or to PTSD
or to any psychiatric disorders.
A November 1998 VA orthopedic examination report essentially
related the same information as to the veteran's military
service. The diagnoses did not refer to any shell fragment
wounds.
In an October 2003 response to PTSD stressor questionnaire, the
Veteran reported that he was assigned to the 3rd Marine Division
and that he served in many companies. He stated that he was in
Da Nang, Ahn Hoa, Dong Ha, and the surrounding areas. He
indicated that he was with a lot of companies because of his
occupational specialty. The Veteran reported that he carried C-4
for mines, booby traps, and tunnels. He stated that he served at
many outposts and that he went out on patrol and did his thing
with explosives.
An April 2004 VA psychiatric examination report noted that the
Veteran served in the Marine Corps between March 1966 and March
1969. He reported that that he was in Vietnam for approximately
fourteen months between 1966 and 1968, but that he could not be
more specific about the dates. The Veteran indicated that he was
with the 3rd Marine Division as a combat engineer, but that he
could not provide more specific information concerning the outfit
to which he was assigned. The Veteran stated that he was
assigned to a number of different outfits as he traveled around
the country as a demolition expert. It was noted that the
Veteran thought he was part of the 1st Battalion of the 9th
Marines; the 3rd Battalion of the 9th Marines; and of the 26th
Regiment of the 1st and 2nd Marine Division. It was also
reported that the Veteran was very confused about providing such
information. The Veteran further stated that he thought that he
spent time near Da Nang Ahn Hoa and Dong Ha.
The Veteran reported that he worked as a demolitions expert and
that he would blow up booby traps, mines, and tunnels to keep the
troops safe. He stated that he would also set up demolition
traps for the enemy and to protect US troops. He indicated that
he went on many patrols and that he was assigned to many units.
The Veteran claimed that he was exposed to rocket and mortar
attacks on frequent occasions and that he went into tunnels
periodically to clear them. He reported that he was hit in both
legs by shell fragments from a rocket attack near Dong Ha, but
that he did not know exactly when such occurred. He stated that
he refused the Purple Heart Medal at that time, but that he was
currently trying to receive it. It was noted that the Veteran
had no history of formal psychiatric treatment. The examiner
indicated, as to an impression, that based on a review of the
Veteran's available medical records, including his claims file,
as well as the currently conducted clinical examination, and
assuming that the information gathered was factual and accurate,
it was his opinion that the Veteran exhibited the following
disorders: dysthymic disorder, secondary to medical
difficulties, and alcohol dependence, active. The examiner
commented that "the Veteran [did] not meet diagnostic criteria
for the diagnosis of PTSD in terms of an identifiable specific
stressor that [met] criteria A for the diagnosis, at least in
terms of information presented." The examiner indicated that
the Veteran complained of some symptoms of PTSD, but without a
specific indentified stressor, the diagnosis could not be made.
The examiner stated that the Veteran did meet the criteria for
depression that was secondary to multiple medical problems and
unrelated to his military service.
An April 2004 consultation report from Mercy Jeannette Hospital
indicated, as to medications, that the Veteran was taking Zoloft
for depression following a prostate cancer diagnosis. It was
noted that the Veteran had a Vietnam War injury in the lower leg
with fragments of metal left in. Diagnoses were not provided.
The Board observes that the Veteran served in Vietnam from July
1966 to January 1967 and from March 1967 to August 1967. The
Veteran has specifically stated that he was exposed to rocket and
mortar attacks on frequent occasions during his time in Vietnam.
He also reported that he served in Da Nang, Ahn Hoa, and Dong Ha.
His service personnel records indicate that he participated in
counter-insurgency operations in the Republic of Vietnam with
"III MAF" and that he participated in Operation Prairie, Phase
III, in the Quan Tri Province of the Republic of Vietnam. He
served with various companies in the 3rd Marine Division and the
9th Marine Division in Vietnam. The Board observes that a mortar
attack on one's unit may be accepted as a stressor event that
could be verified and, in some cases, form the basis of a PTSD
diagnosis. See Pentecost v. Principi, 16 Vet. App. 124 (2002).
The Board notes that there is no indication in the record that
there has been an attempt to verify the Veteran's reported
stressors through the U.S. Army and Joint Services Records
Research Center (JSRRC). Therefore, the Board is of the view
that an attempt to verify the Veteran's alleged stressors and to
obtain relevant unit histories should be made.
Additionally, the Board observes that the December 2009 joint
motion (noted above in the INTRODUCTION) indicated that the Board
should make a finding whether the evidence establishes that the
Veteran was a combat Veteran and, if necessary, obtain a new
examination to determine whether the Veteran has PTSD, and, if
so, whether it is related to service.
Consequently, the Veteran should also be afforded a VA
examination with the goal of arriving at an opinion as to the
etiology of any current psychiatric disorder, to include PTSD.
Such an examination should be accomplished on remand. 38 C.F.R.
§ 3.159(c)(4).
Prior to the examinations, any outstanding records of pertinent
treatment should be obtained and added to the record.
Accordingly, these issues are REMANDED for the following:
1. Ask the Veteran to identify all medical
providers who have treated him for
psychiatric problems since May 2008. After
receiving this information and any
necessary releases, contact the named
medical providers and obtain copies of the
related medical records which are not
already in the claims folder.
2. Contact the Veteran and ask him to
provide specific details for each stressful
event he reports having occurred during
service. The details should include names,
dates, locations, unit affiliations, or any
other identifying information that would
assist in efforts to attempt to verify the
occurrence of the reported events. The
Veteran should be informed that the details
in his response are very important to his
claim.
3. Request that the U.S. Army and Joint
Services Records Research Center (JSRRC),
or other official sources such as the Naval
Historical Center, investigate and attempt
to verify the Veteran's alleged stressors,
to specifically include rocket and mortar
attacks while he served in Vietnam from
July 1966 to January 1967 and from March
1967 to August 1967 and served in Da Nang,
Ahn Hoa, and Dong Ha. JSRRC should also be
asked to provide the histories of the
Veteran's units during the time he was in
Vietnam. If more detailed information is
need for this research, the Veteran should
be given and opportunity to provide it.
4. Schedule the Veteran for a VA examination
by a psychiatrist to determine the nature and
etiology of any current psychiatric disorder.
The claims folder must be provided to and
reviewed by the examiner in conjunction with
the examination. The examiner should
diagnose all current psychiatric disorders.
Following review of the claims file and
examination of the Veteran, the examiner
should provide a medical opinion, with
adequate rationale, as to whether it is more
likely, less likely, or at least as likely as
not (50 percent probability), that any
currently diagnosed psychiatric disorders are
etiologically related to the Veteran's period
of service. If PTSD is diagnosed the
examiner should specify the stressor(s) upon
which the diagnosis was based. If not, the
examiner should then opine as to whether the
Veteran's service-connected prostate cancer
aggravated (permanently worsened beyond the
natural progression) any diagnosed
psychiatric disorders, and if so, the extent
to which they are aggravated. Any opinions
expressed by the examiner must be accompanied
by a complete rationale.
5. Thereafter, review the Veteran's claims
for entitlement to service connection for a
psychiatric disorder, to include PTSD. If
any benefit sought is denied, issue a
supplemental statement of the case to the
Veteran and his representative, and provide
an opportunity to respond, before the case is
returned to the Board.
The purposes of this remand are to ensure notice is complete, and
to assist the Veteran with the development of his claim. The
appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the appellant
that the conduct of the efforts as directed in this remand, as
well as any other development deemed necessary, is needed for a
comprehensive and correct adjudication of his claim. His
cooperation in VA's efforts to develop his claims, including
reporting for any scheduled VA examination, is both critical and
appreciated. The appellant is also advised that failure to
report for any scheduled examination may result in the denial of
a claim. 38 C.F.R. § 3.655.
[Continued on following page.]
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2007).
______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs