Citation Nr: 1415338 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 11-11 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for prostate cancer status post radical prostatectomy, currently rated 60 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to a total rating for compensation purposes based upon individual unemployability (TDIU) is remanded to the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The evidence of record does not show recurrence of prostate cancer, status post prostatectomy. 2. Manifestations of the Veteran's prostate cancer include voiding dysfunction with urinary leakage, but not renal dysfunction. CONCLUSION OF LAW The criteria for a disability rating in excess of 60 percent for prostate cancer, status post prostatectomy, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the veteran of any information and 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's September 2009 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's increased rating claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the September 2010 letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability and the different types of evidence available to substantiate his claim for a higher rating. This letter also informed him of the general requirements to obtain a higher rating and the need to submit evidence of how such worsening affected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini, 18 Vet. App. at 120. The Veteran was afforded VA examinations addressing his current claim for prostate cancer status post prostatectomy in October 2009 and again in June 2012, to ascertain the severity of his prostate cancer, status post prostatectomy. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiners reviewed the Veteran's claims file including treatment records, and administered a thorough examination, allowing for fully-informed evaluation of the claimed disability. The Veteran's representative in October 2011 contended that a new examination was warranted because the prior examination did not address worsening symptoms of the Veteran's prostate cancer. The representative then contended that the prior examination was inadequate because it did not address whether the Veteran had generalized poor health with lethargy, weakness, anorexia, weight loss, or limitation of exertion due to his prostate cancer. The representative asserted that the Veteran contended that his prostate cancer had worsened. However, since that time, in June 2012, the Veteran was afforded an additional VA examination to address his prostate cancer and associated disability. The June 2012 examiner appropriately noted the impact of the prostate cancer status post prostatectomy on daily activities and employment. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). To date, the Veteran has not advanced an argument that the June 2012 examination was deficient in this respect or that he was prejudiced thereby. Id. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Upon a March 2010 VA gastroenterology outpatient consultation, the examiner noted that issues were raised of weight loss and loss of appetite with early satiety. The Veteran had been previously told that he possibly had polyps or diverticula. The examiner noted that an upper gastrointestinal examination and barium enema examination in October 2009 revealed "a cloverleaf deformity in the duodenum felt to be chronic[,] and pan colonic diverticulosis w/ small amount of stool in sigmoid." The examiner further noted that the Veteran's chart revealed an approximate three pound weight loss from April 2009. The Veteran was noted to have weighed 177 pound in 2001 and weighed 148 pounds the day of examination. A past weight of 149.6 pounds in February 2010 was noted with a body mass index then of 24.2. The Veteran was a smoker of 40 years and currently smoked one pack per day. He was also noted to consume one pint of vodka on weekends. He denied current unplanned weight change or other current gastrointestinal symptoms. He had a current prescription of ranitidine taken daily for his stomach. The March 2010 examiner found the Veteran to be well developed, well nourished, and in no acute distress. The examiner assessed early satiety, and abnormal upper gastrointestinal examination and barium enema. Reflux, controlled, was also assessed. The examiner assigned an ASA classification of mild systemic disease. A gastric emptying study, esophagogastroduodenoscopy, and colonoscopy were prescribed. Upon a January 2011 VA routine treatment visit, the treating examiner noted a reported episode of weight loss of about 20 pounds, with a failure to thrive. However, a date or time interval for this reported episode was not then noted. Objective findings did not include lethargy or other generalized impairment of vitality. A body mass index of 24.0 was recorded. At the June 2012 VA examination, the Veteran reported having to wear diapers which he had to change six to seven times per day due to urinary incontinence. The Veteran did not report at that examination that he experienced generalized poor health or lethargy, weakness, anorexia, weight loss, or limitation of exertion due to his prostate cancer, beyond limitations associated with urinary frequency and urinary leakage/incontinence. The examiner found that the Veteran had a voiding dysfunction associated with urinary leakage which required the wearing of absorbent materials which needed to be changed four or more times per day, but that wearing of an appliance was not required, and there was no issue of voiding obstruction. The Veteran had urinary frequency with daytimes voiding interval between one and two hours, and nighttime awakening to void five or more times. The examiner noted that the Veteran's prostate cancer had been treated with radical prostatectomy and that it was in remission. Other than the voiding frequency and the urinary leakage requiring wearing of absorbent materials, the examiner opined that the Veteran's prostate cancer did not result in any other residual conditions or complaints. Thus, while the examiner did not explicitly address issues raised by the Veteran's representative of lethargy, or of weakness, anorexia, weight loss, or limitation of exertion due to prostate cancer, the examiner's general statements and findings sufficiently discounted the presence of any such systemic or additional disability being attributable to the Veteran's prostate cancer status post prostatectomy. Thus, treatment records associated with gastrointestinal disability present medical support for the presence of systemic-type loss of vitality or failure to thrive, similar in nature to the systemic impairment asserted by the Veteran's representative. However, these treatment records implicate gastrointestinal conditions rather than prostate cancer as causes of this "failure to thrive." Medical evidence does not support attribution of any such failure to thrive or other systemic impairment to the Veteran's prostate cancer, status post prostatectomy, for any time interval within the rating period in question. The Veteran, as a layperson, is not competent to attribute systemic conditions or symptoms to one disability versus another. Hence, the Veteran's assertions seeking to attribute systemic symptoms to his prostate cancer status post prostatectomy do not serve to support the increased rating claim. A 100 percent rating is assignable under Diagnostic Code 7528, for malignant neoplasms of the genitourinary system. The note following this diagnostic code indicates that, following the cessation or surgery, chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. 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, then a veteran's cancer is rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability. 38 C.F.R. § 4.115b. Renal dysfunction has not been shown at any time pertinent to the current claim for increase. Voiding dysfunction is rated by the particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence warrants a 60 percent rating when it requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. If absorbent materials are required which must be changed 2 to 4 times per day, a 40 percent rating is warranted. If absorbent materials are required which must be changed less than 2 times per day, a 20 percent rating is warranted. Id. Daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating. Daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating. Id. The findings of the June 2012 VA examination are reasonably and sufficiently consistent with prior examination and treatment records, in that the prior VA examination addressing his service-connected prostate cancer, status post prostatectomy, in October 2009, as well as prior treatment records, do not find that the Veteran has disability attributable to his prostate cancer status post prostatectomy beyond the voiding dysfunction upon which the Veteran is herein rated, and beyond an erectile dysfunction which is separately compensated by VA and is not the subject of the present appeal. The maximum schedular rating has been assigned for service-connected prostate cancer, status post prostatectomy, based on voiding dysfunction, with the 60 percent assigned. Hence, a schedular rating in excess thereof on that basis is not possible. Other compensable residuals have not been identified. Absent renal dysfunction or another basis of rating the disability, a schedular rating in excess of 60 percent is not warranted for the Veteran's prostate cancer status post prostatectomy. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected prostate cancer, status post prostatectomy, was evaluated pursuant to 38 C.F.R. § 4.115a and Diagnostic Code 7528. As discussed above, the Veteran's voiding dysfunction is specifically contemplated in the criteria for the 60 percent evaluation already assigned. The Board finds that referral for an extraschedular rating is not warranted because the rating criteria adequately encompasses the symptoms of the service-connected disability presented, namely urinary frequency, and leakage requiring wearing and frequent change of absorbent materials or diapers. Accordingly, remand for referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b); Thun. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected prostate cancer, status post prostatectomy, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected prostate cancer, status post prostatectomy, varied to such an extent that a rating greater or less than 60 percent would be warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 60 percent for service-connected prostate cancer, status post prostatectomy, is denied. REMAND In addition, TDIU is an element of all appeals for an initial or increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); VAOPGCPREC 6-96, 61 Fed. Reg. 66749 (1996) (if the Board has jurisdiction over the question of TDIU for a particular disability in connection with a claim for an increased rating, the proper method of returning the case to the RO for further action is by remand). Accordingly, the case is remanded for the following action: 1. The RO must comply with the duty to notify provisions with respect to the Veteran's claim of entitlement to TDIU, as well as any duty to assist procedures, to include providing the Veteran with a VA Form 8940 "Veteran's Application for Increased Compensation Based on Unemployability." 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for TDIU. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. Thereafter, The Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected prostate cancer, status post prostatectomy, and residuals therefrom, disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected prostate cancer, status post prostatectomy, and residuals therefrom, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim for TDIU. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for TDIU must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs