Citation Nr: 1334004 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-27 501A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder. 2. Entitlement to service connection for residuals of a stroke. 3. Entitlement to service connection for a disability manifested by left arm numbness. 4. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer. 5. Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1967 to March 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). A March 2009 rating decision, in pertinent part, denied service connection for left arm numbness, service connection for residuals of a stroke, and entitlement to a TDIU rating. A January 2010 rating decision, in pertinent part, increased the rating for residuals of prostate cancer to 20 percent, effective from the date of claim, denied service connection for a psychiatric disability (to include PTSD and depression), and again denied a TDIU rating. In November 2012, a Travel Board hearing was held before the undersigned; a transcript of that hearing is associated with the claims file. The Board notes that the Veteran has been assigned a separate rating and special monthly compensation (SMC) for erectile dysfunction. In the January 2010 rating decision, the issue of entitlement to an increased disability rating for erectile dysfunction was appropriately adjudicated as a distinct issue alongside the issue of entitlement to an increased rating for residuals of prostate cancer. The Veteran's March 2010 notice of disagreement specified that he intended to appeal only three of the eight issues addressed in the January 2010 rating decision: the prostate cancer rating issue, the psychiatric disability service connection issue, and the TDIU issue. The Veteran did not initiate an appeal of the issue concerning the rating for erectile dysfunction, and therefore such matter is not before the Board. The issues of service connection for a psychiatric disability, residuals of a stroke, and a disability manifested by left arm numbness, and entitlement to a TDIU rating are REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if action on his part is required. FINDING OF FACT At no time during the pendency of his claim for increase are the Veteran's residuals of prostate cancer shown to have been manifested by reoccurrence or metastasis, renal dysfunction, leakage requiring absorbent materials, or obstruction; the disability has been manifested by daytime voiding interval between one and two hours and nocturnal frequency of awakening three to four times per night, but not by daytime voiding interval less than 1 hour and/or nocturia five times or more per night. CONCLUSION OF LAW A rating in excess of 20 percent is not warranted for residuals of prostate cancer. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.21, 4.115a, 4115b, Diagnostic Codes (Codes) 7522, 7527, 7528 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase the VCAA notice requirement is generic notice, namely notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect such has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1279 (Fed. Cir, 2009). An October 2009 letter provided the Veteran the generic notice required. It is not alleged that he is/has been prejudiced by a notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing prejudicial error). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in November 2009 and April 2011. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disability to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by the application of a schedular rating, which is based on an average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In order 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, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). A claimant 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 Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.) The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's claim for an increased rating for residuals of prostate cancer was received in October 2009. The relevant period for consideration for a claim for increase is from one year prior to the date of the claim. The RO increased the rating from 10 to 20 percent effective from the date of claim. There is no pertinent evidence describing the features of the prostate cancer residuals in the year prior to October 2009. There is therefore no basis for increasing the rating prior to the date of claim; notably, the Veteran has not challenged the effective date of the increase. Prostate cancer/residuals are rated under Code 7528 (for malignant neoplasms of the genitourinary system), which provides for a 100 percent rating upon diagnosis of malignancy and for 6 months following surgery, X-ray, chemotherapy, or other therapeutic procedure. Thereafter, if there has been no local recurrence or metastasis, the disability is to be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b. Notably, here there is no evidence of local recurrence or metastasis. Voiding dysfunction is rated based on urine leakage, frequency, or obstructed voiding. For a rating based on leakage, the minimum compensable (20 percent) rating criteria provide that wearing of absorbent materials (e.g. pads/diapers) is required. As it is neither shown nor alleged that the Veteran is required to wear absorbent materials, a rating on such basis is not warranted. 38 C.F.R. § 4.115a. The Veteran testified at the November 2012 Board hearing that he did not wear a pad for urine leakage; there is no contrary indication of record. Under the obstructed voiding rating criteria, a 0 percent rating is assigned where there is obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating is appropriate where there is 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 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 ss/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted where urinary retention requires intermittent or continuous catheterization. 38 C.F.R. § 4.115a. As it is neither shown nor alleged that the Veteran has obstructive symptomatology, a rating on such basis is not warranted. 38 C.F.R. § 4.115a. The Veteran is currently assigned a 20 percent rating for urinary frequency, which is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night. Under 38 C.F.R. § 4.115a, urinary frequency with daytime voiding interval between two and three hours, or awakening to void two times per night, warrants a 10 percent rating. A 20 percent rating is warranted for urinary frequency with daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is warranted for urinary frequency with daytime voiding interval less than one hour, or awakening to void five or more times per night. The Veteran underwent a VA examination in connection with the development of evidence for this claim on appeal in November 2009. The report of this VA examination shows that prostate cancer was diagnosed with in April 2004, and that he underwent radical retropubic prostatectomy in July 2004 (this information is consistent with other documentation in the claims-file). The Veteran reported that in periodic evaluation for recurrence of the prostate cancer his prostatic specific antigen has remained within normal limits since the radical retropubic prostatectomy. The Board observes that it finds no evidence of record which contradicts the Veteran's belief that he has neither had metastasis nor recurrence of the prostate cancer that was treated with surgery in July 2004. The November 2009 VA examination report shows that the Veteran "has no renal dysfunction" and "denies any urinary incontinence." He reported that his voiding frequency "during the daytime is five times, two hours apart," and that "[h]is nighttime voiding frequency is two to three times, two hours apart." The VA examiner assessed that the Veteran's genitourinary condition would not prevent him from resuming his former occupation as the owner of a plumbing business, but with the limitations associated with the need to make frequent visits to the bathroom for urination due to his prostate condition. The VA examiner assessed that the Veteran's activities of daily living are not affected by his genitourinary condition. The November 2009 VA examiner found the prostate cancer to be in remission. The November 2009 VA examiner also indicated, with regard to renal function, that "kidney function is not an issue." The Board finds that the November 2009 VA examination report is probative evidence in that it was prepared by a competent medical professional informed by examination of the Veteran and acceptance of the Veteran's own account of his symptoms. The November 2009 VA examination report's findings are not significantly contradicted by any other evidence of record. On April 2011 VA examination it was noted that the Veteran "denies renal disease such as lethargy, weakness, anorexia, or weight gain due to prostate cancer." The examiner noted: "Kidney function is not an issue." and "Veteran denies incontinence of urine and does not use urinary pads." The Veteran reported that he "voids 6 time in the day and 3 times at night." The Veteran denied dialysis treatment and denied urinary disorders such as malignancy or bladder condition. The Veteran "denies other residuals of genitourinary disease." The examiner assessed that the Veteran's prostate cancer did not limit his capacity for occupational activities, nor activities of daily living. Referenced diagnostic tests revealed results of "PSA 0.01, BUN 10, creatinine 0.83" as of October 2010. The diagnosis was: "Prostate cancer on remission." The Board finds that the April 2011 VA examination report is probative evidence in that it was prepared by a competent medical professional informed by examination of the Veteran and acceptance of the Veteran's own account of his symptoms. The April 2011 VA examination report's findings are not significantly contradicted by any other evidence of record. The Veteran testified in detail concerning this issue during his November 2012 Board hearing. [The Board notes that the Veteran was not advised by the undersigned of what is needed to substantiate his claim. The requirement for such notice was rendered moot by the presentation of argument, and elicitation of testimony by the Veteran's representative, which reflect that the Veteran and his representative are well aware of what is needed to substantiate the claim, and what type of evidence would be probative in this matter. Notably, the Veteran's accounts of his symptoms have been accepted at face value.] The Veteran's representative inquired: "I believe the evidence show you -- you void approximately five times a night?" The Veteran initially endorsed this characterization ("Um-hum"), but later clarified that he does not void that frequently at night. After discussing the fact that the most recent VA examination report documented that he reported voiding three times per night, the Veteran was asked to clarify ("How many times a night do you go?") and responded that he voids at night "[p]robably three to four times." The Veteran's testimony on this issue otherwise stated that he estimates that he voids during the day "four, five, six times," but that his difficulties from prostate cancer feature "dripping." The Veteran stated that he does not wear any absorbent materials for the problem. The Board finds that the probative and detailed evidence of record, including with documentation of the Veteran's own account of his symptom experience, presents a disability picture that does not most nearly approximate the criteria for a rating in excess of 20 percent for the prostate cancer residuals. The pertinent evidence is clear and consistent in showing that neither the Veteran nor medical professionals believe that his prostate cancer has been manifested by malignancy or recurrence during the period on appeal; a higher rating that basis is not warranted. The evidence is clear and consistent in showing that neither the Veteran nor medical professionals believe that the Veteran requires the use of absorbent materials. Accordingly, no higher rating is warranted on the basis of urinary leakage. The evidence clearly and consistently shows that the Veteran has no obstructive urinary symptomatology. Accordingly, no higher rating is warranted on the basis of obstructed voiding. Inasmuch as there is no evidence of renal dysfunction (both VA examiners specifically noted there is none, and the Veteran has not suggested otherwise), rating on such basis is not warranted. The current 20 percent rating contemplates his reported urinary frequency with daytime voiding interval between one and two hours, or awakening to void three to four times per night. The Veteran's own account of his pertinent symptoms has indicated that he experiences no greater urinary frequency than that contemplated by the 20 percent rating. His most recent description of symptoms, at the November 2012 Board hearing, directly indicates that he awakens to void fewer than five times per night and that his daytime voiding interval is not less than one hour. Accordingly, the Board finds that a rating in excess of 20 percent is warranted on the basis of urinary frequency. Having considered all applicable criteria, the Board finds no basis for assigning a higher rating for the Veteran's prostate cancer. Furthermore, the record does not reflect any further compensable complications of prostate cancer that have not been separately rated. (Erectile dysfunction is separately and compensated with special monthly compensation.) The Board acknowledges that the claims file contains numerous other documents, including medical records referring to the Veteran's prostate cancer and residuals, but none of the information in these records substantially supports the Veteran's claim or contradicts the evidence deemed to be most probative in the discussion above. In sum, there is no basis for assignment of any higher rating for prostate cancer during any portion of the appeal period. The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the manifestations of the Veteran's prostate cancer with the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria for the ratings assigned, and consequently those criteria are not inadequate. Therefore, referral for consideration of an extraschedular rating is not necessary. The matter of entitlement to a TDIU rating is addressed in the remand below. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The preponderance of the evidence is against this claim for increase; accordingly, the appeal in this matter must be denied. ORDER A rating in excess of 20 percent for prostate cancer residuals is denied. REMAND At the November 2012 Board hearing, the Veteran testified that he believed that the stroke he suffered in 2008 was causally related to his use of medication to treat his service-connected erectile dysfunction associated with his service-connected prostate cancer. The Veteran's testimony was clear to the extent that he recalled being given medications, specifically Viagra and Cialis, in connection with attempts to manage or treat his service-connected symptoms. The testimony was not entirely clear with regard to identifying any specific provider of this medication. The Board's review of the claims-file found that the Veteran has described to VA examiners (including in September 2004) that he had tried Viagra to treat his symptoms without success; there is no documentation in the claims-file of a prescription or distribution of samples of the medication in question. Whether medication was prescribed to treat prostate cancer-related ED is a threshold matter that must be resolved in addressing this theory of entitlement to service connection for residuals of stroke. As the record is inadequate to properly address the matter, development by remand is necessary. Thereafter, if the evidence shows that Viagra and/or Cialis (or other such medication) were prescribed to treat the Veteran's erectile dysfunction, a medical opinion to secure a nexus opinion would be necessary. The Veteran is advised that a governing regulation provides that where pertinent evidence requested in connection with a claim for VA benefits (to include releases for records of private treatment) is not received within one year of the request; the claim is to be considered abandoned. See 38 C.F.R. § 3.158(a). He is further advised that if VA is unable to secure private records of his treatment, it is ultimately his responsibility to ensure that such records are received. Turning to the issue of service connection for a psychiatric disability, the presentation and testimony of the Veteran and his representative at the November 2012 Board hearing clarified that he contends he currently suffers from depression and adjustment disorder secondary to his service-connected medical disabilities. The Board observes that a December 2009 VA psychiatric examination report indicates that he has a diagnosis of "Major Depressive Disorder," and the examiner's discussion repeatedly suggests that onset of this disability may be associated with the Veteran's stroke in 2008 and his physical impairments. Final adjudication of this service connection claim on a theory of secondary service-connection must be deferred until the inextricably intertwined service-connection claims are resolved. Furthermore, a new VA psychiatric examination is needed to address whether any diagnosed psychiatric disability has been caused or permanently aggravated by the Veteran's service-connected disabilities; such examination will also provide responses to questions as to whether the Veteran's well-documented combat service and trauma are a possible etiological factor for any currently-diagnosed psychiatric disability. The Veteran's claim of service connection for a disability manifested by left arm numbness has been clarified, including during the Veteran's November 2012 Board hearing, to include the Veteran's contention that such disability is a result of his 2008 stroke. As the Veteran's claim of service connection for the stroke is being remanded for additional development, the Board must defer final adjudication of the left arm disability issue which is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, the issue of entitlement to a TDIU rating is also inextricably intertwined with each of the other issues being remanded at this time. Final appellate review of the TDIU issue must be deferred until development and adjudication of the intertwined issues may be completed. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify the providers and dates of any (and all) medical treatment or evaluation he has received for his service-connected erectile dysfunction, including each medical provider who prescribed or otherwise issued to him Viagra and/or Cialis (or other such medication) as part of the treatment, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation outstanding (i.e., those not already associated with the record or certified to be unavailable). The RO should secure for the record copies of the complete clinical records of all such treatment and evaluation from all sources identified by the Veteran. If any records requested are unavailable, the reason for their unavailability must be explained for the record. If the Veteran does not respond with identifying information (and releases for private records) within the period of time afforded by regulation, his claim should be further processed under 38 C.F.R. § 3.158(a). 2. If, and only if, the completed record includes documentation that the Veteran received Viagra and/or Cialis (or similar medication) to treat his erectile dysfunction, the RO should arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of the Veteran's stroke, and in particular whether or not it is related to his military service or was caused or aggravated by his erectile dysfunction (or treatment thereof). The record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's stroke was caused by (or otherwise a consequence of) his military service or any event therein? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's stroke was etiologically linked to his service-connected erectile dysfunction? Specifically, please address the Veteran's contention that treatment of his service-connected erectile dysfunction with Viagra and/or Cialis was a significant causal factor leading to the occurrence of the stroke. The examiner must explain the rationale for all opinions, to include comment on any credibility issues raised by the record (i.e., by conflicting reports). 3. The RO should arrange for the Veteran to be examined by a psychiatrist to determine the nature and likely etiology of each psychiatric disability found. The examiner must review the entire record (to include this remand) in conjunction with the examination, and the examination and the report thereof should be in accordance with DSM-IV. Upon review of the claims file and examination of the Veteran, the examiner should offer opinions that respond to the following: (a) Please identify (by psychiatric diagnosis) any and each chronic psychiatric disability entity currently found or diagnosed during the pendency of this claim (since the year 2009). (b) As to any and each psychiatric disability entity diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such was caused by (or otherwise a consequence of) his military service or any event therein, to include the Veteran's clearly established/conceded combat stressors? The response to this question must specifically address the Veteran's claimed psychiatric diagnoses of PTSD and Major Depressive Disorder. The response to this question should address the Veteran's lay statements concerning psychiatric stressor events and symptom history. (c) As to any (and each) psychiatric disability entity diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such was caused by the Veteran's service-connected medical disabilities (considering each service-connected disability individually, and all of them aggregately as a set)? The examiner should also specifically indicate whether the opinion provided would be different in the event that service connection were established for the Veteran's stroke and left arm numbness. (d) As to any (and each) psychiatric disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such was aggravated by (increased in severity due to) the Veteran's service-connected medical disabilities.? If the opinion is to the effect that service-connected disabilities did not cause, but aggravated, a psychiatric disability(ies). the examiner should also specify, so far as possible, the degree of psychiatric disability resulting from such aggravation. The examiner should also specifically indicate whether the opinion provided would be different in the event that service connection were established for the Veteran's stroke and left arm numbness. The examiner must explain the rationale for all opinions, to include comment on any credibility issues raised by the record (i.e., by conflicting reports). 4. Thereafter, the RO should undertake any other development suggested by the expanded record. The RO should then review the record and readjudicate the claims. If any claim on appeal remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B, 7112 (West Supp. 2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs