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