Citation Nr: 18132286
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-37 795
DATE:	September 6, 2018
ORDER
Entitlement to service connection for hypertension is denied.
Entitlement to an increased rating in excess of 30 percent for irritable bowel syndrome, claimed as a stomach condition is denied.
Entitlement to a compensable rating for erectile dysfunction associated with prostate cancer is denied.
REMANDED
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded.
Entitlement to service connection for the residuals of bladder cancer is remanded.
FINDINGS OF FACT
1. The Veteran served in Vietnam during the Vietnam Era and is presumed to have been exposed to an herbicide agent (i.e., Agent Orange).
2. Hypertension was not manifest in service nor was it demonstrated within the one year following separation from service, nor has it been shown to be related to service, to include due to herbicide exposure. 
3. The Veteran is in receipt of the maximum 30 percent rating for IBS.  There are no records or findings showing anemia, colitis, or other impairment warranting consideration of a different code, nor is it contended otherwise.
4. The Veteran’s erectile dysfunction has been manifested by loss of erectile power without internal or external deformity of the penis.  Special monthly compensation for loss of use of a creative organ is assigned.
CONCLUSIONS OF LAW
1. Hypertension was not incurred in service, within one year of service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2017). 
2. The criteria for an increased disability rating for IBS, currently rated at 30 percent, not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.115b, Diagnostic Code 7319 (2017).
3. The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.115b, Diagnostic Code 7522 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from October 1964 to October 1966.  This include duty in Vietnam.
Service Connection
1. Entitlement to service connection for hypertension
The Veteran contends that he is entitled to service connection for hypertension. 
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
Certain disorders associated with herbicide agent (Agent Orange) exposure in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 C.F.R. §§ 3.307, 3.309. While ischemic heart disease was added to the presumptive list, Note 2 to 38 C.F.R. § 3.309 (e) clarifies that the term ischemic heart disease does not include hypertension. Therefore, the Veteran is not entitled to service connection on a presumptive basis due to herbicide exposure.  
Additionally, certain chronic diseases, such as hypertension, may be service connected if incurred or aggravated by service or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, there is no evidence of a diagnosis of hypertension within one year of separation; therefore, service connection on a presumptive basis due to chronic diseases is not warranted.
Notwithstanding the foregoing, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a current diagnosis of hypertension.  
Service treatment records are silent for complaints or treatment of hypertension or high blood pressure. Upon discharge in October 1966, the Veteran's blood pressure was 138/74. No hypertension was noted. The Veteran has not alleged in-service incurrence of his disability. 
The clinical evidence shows that hypertension was not shown until many years after active duty service. In the Veteran's claim, he stated that his hypertension began in the 1980s and he started treatment in 2007.  Post service treatment records show a blood pressure of 110/70 in July 1967.  The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent which links the Veteran’s hypertension to service. The Board concludes that the evidence does not support the claims for service connection and there is no doubt to be resolved. 38 U.S.C. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  His statements of having hypertension in the years after service and getting medication have been reviewed, but do not clinically establish the onset of hypertension within the first post-service year.
Increased Ratings
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the Veteran is requesting an increased rating for a service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that the Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods.
2. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome (IBS), also claimed as a stomach condition
The Veteran’s service-connected irritable bowel syndrome is evaluated under Diagnostic Code 7319.  A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 
For the entire rating period, the Veteran’s diarrhea has been rated at the maximum 30 percent rating under the aforementioned criteria. Therefore, a higher rating may only be assigned under an alternate rating code.  
Neither the Veteran's statements nor his treatment records show symptoms of intestinal disorders, anemia, ulcerative colitis, impairment of anal sphincter control, or of the rectum and anus, or any other symptoms which would provide a higher rating for his IBS.  At the March 2018 Board hearing, the Veteran acknowledged that the 30 percent rating reflect his current symptoms.  
In the absence of any medical evidence otherwise, the Board concludes that Diagnostic Code 7319 is the most appropriate criteria to evaluate the Veteran’s diarrhea. Given that the Veteran is in receipt of the maximum allowable rating, his claim for an initial rating in excess of 30 percent must be denied.
3. Entitlement to an increased rating for erectile dysfunction associated with prostate cancer
The Veteran’s erectile dysfunction has been assigned a noncompensable rating. 38 C.F.R. § 4.115b. To warrant a compensable 20 percent rating for erectile dysfunction, there must be deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. 
In this case, the record does not show that the Veteran has either any external or internal deformity of the penis. The May 2009 VA examination reflected a normal male genital examination. Additionally, at the March 2018 Board hearing, the Veteran denied symptoms or problems other than erectile dysfunction.  
Thus, the Board finds that while the Veteran’s erectile dysfunction has been manifested by a loss of erectile power, as he has indicated he cannot achieve an erection without medication, there is no evidence of either an external or internal deformity of the penis. Accordingly, a compensable disability rating for erectile dysfunction is not warranted. 
In conclusion, an increased compensable disability rating for erectile dysfunction is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded.
The Veteran was afforded a VA examination in February 2011 regarding his mental health.  The examiner diagnosed anxiety disorder and sleep disorder.  She opined that his sleep disorder was related to the Veteran's service in Vietnam but that further evaluation was necessary to diagnose anxiety disorder.  The examiner also opined that “it is possible that the Veteran's psychological symptoms were precipitated in 2007 by his diagnosis of prostate cancer.”
The Board finds that a clarifying opinion is necessary to address whether the Veteran has a diagnosis of an acquired psychiatric disorder and if any such disorder was incurred during or as a result of service, secondary to a service-connected disorder, or whether it is otherwise related to service.  Therefore, remand is warranted. 
2. Entitlement to service connection for the residuals of bladder cancer
The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides.  He is in receipt of service connection for prostate cancer.  The Veteran contends that his bladder cancer is related to his prostate cancer.  The Board finds that an examination is necessary to determine whether the Veteran incurred bladder cancer as a result of his service or secondary to his prostate cancer. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran’s claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). 
The matters are REMANDED for the following action:
1. Obtain and associate any outstanding, relevant treatment records with the claims file.  The Veteran’s assistance in identifying approximate dates and places of treatment should be solicited as needed.  Records should encompass all available for any psychiatric treatment since separation from service as well as any urology treatment records for which have not been obtained.  All attempts to obtain records should be documented in the file.
2. Forward the claims folder to a VA psychiatrist or psychologist for an examination of the Veteran, to determine the nature and etiology of the Veteran’s acquired psychiatric disorder.  The claims file must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file. All indicated tests and studies must be performed.
The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding.
If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and state the stressor(s) that form the basis of the diagnosis.
If the Veteran is diagnosed with an acquired psychiatric disorder other than PTSD, the examiner must opine whether it is at least as likely as incurred during or as a result of active service.
If the examiner determines that the Veteran had a psychiatric condition that pre-existed service, the examiner must provide all relevant evidence to support that opinion.  The examiner must consider and discuss the notations upon entry into service reflecting “anxiety under stress” and “nervous trouble” as well as the normal psychiatric clinical evaluation. The examiner must then provide an opinion as to whether any pre-existing disorder was or was not unequivocally aggravated during service beyond its natural progression.  
In the alternative, the examiner should opine as to whether any acquired psychiatric disorder found is proximately due to, the result of, or aggravated by a service connected disability, to include IBS or prostate cancer.
The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles.
3. Schedule the Veteran for a VA examination by an appropriate specialist in order to determine the etiology of his bladder cancer. The claims file must be made available to the examiner for review, and the examiner should indicate that the claims file was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. After reviewing the complete record, the examiner is asked to provide an opinion as to the following:
Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran incurred bladder cancer as a result of his service, to include as a result of exposure to an herbicide agent? 
Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s bladder cancer is related to his prostate cancer?
A detailed explanation (rationale) is requested for all opinions provided. 
4. The AOJ should review the examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures.

 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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