Citation Nr: 1032287 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 07-11 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 60 percent for prostate cancer, to include restoration of a 100 percent rating. 2. Entitlement to service connection for a major depressive disorder as secondary to prostate cancer. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from February 1968 February 1971. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Department of Veterans Affairs (hereinafter VA) Regional Office in San Juan, the Commonwealth of Puerto Rico, (hereinafter RO). The claim for entitlement to service connection for major depressive disorder as secondary to prostate cancer addressed in the REMAND portion of the decision below requires additional development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As the claim for TDIU is inextricably intertwined with this issue, the adjudication of this claim by the Board at this time must be deferred. Harris v Derwinski, 1 Vet. App. 80 (1991). FINDINGS OF FACT 1. Following a January 2006 VA examination report that referenced a normal prostate specific antigen test in November 2005 and showed that residuals of prostate cancer result in the Veteran having to wear absorbent material that have to be changed up to 4 times a night and 2 times per day, a March 2006 rating decision proposed to reduce the 100 percent rating for prostate cancer to 60 percent; the Veteran was notified of this proposal in April 2006. 2. The reduction in the rating for prostate cancer to 60 percent, effective from September 1, 2006, was formally implemented by a June 2006 rating decision. 3. The decision to reduce the Veteran's evaluation for prostate cancer from 100 percent to 60 percent was supported by the evidence of record at the time of the reduction and was made in compliance with applicable due process laws and regulations. 4. Residuals of prostate cancer do not include renal dysfunction resulting in persistent edema and albuminuria with blood urea nitrogen of 40 to 80 mg %; creatinine of 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent rating for prostate cancer, to include restoration of a 100 percent rating, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 3.400, 4.115a, 4.115b Diagnostic Code (DC) 7528 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was addressed in the instant case by letter dated in April 2006 that informed the Veteran of the proposed reduction in the rating for prostate cancer and by the March 2007 statement of the case that included a discussion of potentially applicable rating criteria. See Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008). Although the information contained in this Statement of the Case was not provided prior to the rating actions that proposed and implemented the rating reduction at issue, the Veteran has been represented by a service organization in the course of the appeal, and he was informed by way of the April 2006 letter that he had the opportunity to submit additional evidence to demonstrate that the rating reduction should not be made. Ultimately, the Veteran had a meaningful opportunity to participate in the adjudication process, so he was not prejudiced by any errors in the manner of notice under the VCAA. The above analysis notwithstanding, in this case, the procedures applicable to reduction from a total (100 percent) rating to a lesser rating under 38 C.F.R. § 4.115b for prostate cancer are specified in that rating code, and require the schedular reduction to be conducted in accordance with 38 C.F.R. § 3.105. Section 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). This process was adhered to in this case. All relevant evidence necessary for the decisions made herein has been obtained and examinations accomplished. II. Legal Criteria/Analysis A. Propriety of Reduction The Veteran's prostate cancer is evaluated under DC 7528, which provides that active malignant neoplasms of the genitourinary system are to be rated as 100 percent disabling. Following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedures, 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, the disability is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. DC 7528. A December 2004 VA biopsy demonstrated adenocarcinoma of the prostate, and following a February 2005 radical retropubic prostatectomy, service connection for prostate cancer, on a presumptive basis as due to exposure to Agent Orange, was granted by a March 2005 rating decision. A 100 percent rating was assigned effective from January 18, 2005. Thereafter and pursuant to DC 7528, the Veteran was afforded a VA examination in January 2006, with the report from the examination noting that the Veteran's prostate specific antigen (PSA) was recorded at .021 ng/mL in November 2005. Such a PSA finding is not indicative of active prostate cancer. (For information only, and without reliance thereon, the Board notes that the prostate specific antigen is a protein produced by the cells of the prostate gland. PSA is present in small quantities in the blood of normal men, and is often elevated in the presence of prostate cancer.) It was noted on the January 2006 examination reports that problems with voiding required the Veteran to wear pampers that had to be changed up to 4 times a night and 2 times per day. The reports indicated the Veteran had not received any treatment for cancer since the February 2005 prostatectomy and did not reflect any evidence that the Veteran's prostate cancer was active at that time. VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Parenthetically, the Board notes that the 100 percent evaluation for the Veteran's genitourinary disability assigned from January 2005 was only continued until September 2006; as such, because the 100 percent evaluation had not been in effect for five years or more, compliance with the provisions of 38 C.F.R. § 3.344(a) and (b) is not required. 38 C.F.R. § 3.344(c). In this case, the Veteran was notified by the RO in April 2006 that it proposed to reduce from 100 percent to 60 percent the schedular evaluation assigned for his prostate cancer. The Veteran was advised that he had 60 days to present additional evidence that his compensation payments should be continued at their present level, and that he could request a predetermination hearing. The letter further advised the Veteran that if additional evidence was not received within the 60 day period and no hearing was requested, final rating action would be taken and the award (the 100 percent evaluation) would be reduced. By rating action in June 2006, the RO reduced the rating for prostate cancer to 60 percent from 100 percent. In this case, the Board finds that the reduction of the 100 percent schedular evaluation for prostate cancer was proper. Pursuant to DC 7528, the Veteran was afforded a comprehensive VA examination in January 2006 that followed the normal PSA test in November 2005 and did not indicate the Veteran had active prostate cancer or that there was a local metastasis or recurrence of prostate cancer. There is otherwise no competent evidence of active prostate cancer. Although the Veteran has some ratable residuals of prostate cancer as describe below, DC 7528 makes it clear that residuals alone cannot serve as a basis for continuation or restoration of a 100 percent evaluation for prostate cancer. 38 C.F.R. § 4.115b, DC 7528. Given the above, the Board finds that at the time of the June 2006 rating reduction, the evidence reflected an actual improvement in the Veteran's genitourinary disability, such that a rating reduction from 100 percent was warranted. The cancer was no longer present, and the Veteran's 60 percent evaluation represented his level of impairment resulting from the predominant residual (voiding dysfunction), with the 60 percent evaluation the highest rating for voiding dysfunction, under 38 C.F.R. § 4.115a, DC 7528. The evidence clearly establishes that the procedures specified in DC 7528 and 38 C.F.R. § 3.105 were followed, and that the rating reduction was proper. Consequently, there is no basis for restoring the previous 100 percent evaluation. B. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The Board notes initially that a separate grant of special monthly compensation for the loss of use of a creative organ has been granted effective from February 23, 2005. As noted above, if there has been no local reoccurrence or metastasis following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, then the disability is to be rated based on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528, including note (2009). In addition, pursuant to the provisions of DC 7527, postoperative residuals of prostate gland injuries are evaluated under either voiding dysfunction, renal dysfunction, or urinary tract infection, whichever is predominant. DC 7527 (2009). In this case, there is no evidence of a recurrence of active cancer shown or alleged. The predominant residual of the Veteran's prostate cancer is limited to voiding dysfunction, manifested as urinary leakage. Voiding dysfunction under 38 C.F.R. § 4.115b, DC 7528, is further classified as involving urine leakage, urinary frequency, or obstructive voiding. 38 C.F.R. § 4.115a. For urinary leakage, the maximum 60 percent rating is assigned when there is required the use of absorbent materials which must be changed more than four times a day. As such, the current 60 percent rating is the highest assignable rating for urinary leakage. The highest assignable ratings for urinary frequency and obstructive voiding are, respectively, 40 and 30 percent; therefore, a rating in excess of the 60 percent rating could not be assigned for any such residuals if they were present. Finally, the highest assignable for a urinary tract infection (absent renal dysfunction) is 30 percent, thus precluding increased compensation for such symptomatology even if present. An 80 percent evaluation may be assigned if there is renal dysfunction resulting in persistent edema and albuminuria with blood urea nitrogen of 40 to 80 mg %; creatinine of 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Such renal dysfunction was not described at the January 2006 examination or elsewhere in the record, and it is noted that while the impression at this examination included a right renal cyst, the examiner noted that this condition was unrelated to the condition at issue. There are otherwise no clinical findings which would warrant a rating in excess of 60 percent under any other potentially applicable diagnostic code. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." See Barringer v. Peak, 22 Vet App 242 (2008) The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluation is not inadequate. As indicated, a rating in excess of that currently assigned is provided for certain manifestations of the Veteran's service-connected residuals, but those manifestations are not present in this case. Moreover, notwithstanding the general assertion of the Veteran's representative in his May 2010 presentation that an extraschedular rating is warranted, the Board finds no evidence of an exceptional disability picture, as the service-connected residuals have not shown functional limitation beyond that contemplated by the 60 percent rating currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. ORDER Entitlement to a rating in excess of 60 percent for prostate cancer, to include restoration of a 100 percent rating, is denied. REMAND The Veteran contends that he developed psychiatric problems as a result of his prostate cancer residuals, and is thus claiming entitlement to service connection for a psychiatric disorder as secondary to this service connected disability. In considering this contention, the Board notes that service connection may be established for that portion of a disability resulting from aggravation of a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In this case, while it is clear that a variously diagnosed psychiatric disorder, to include anxiety reaction and major depressive disorder, existed prior to the Veteran's diagnosis of prostate cancer, the medical opinion addressing the Veteran's secondary service connection claim following the August 2006 VA psychiatric examination did not indicate whether the Veteran's preexisting psychiatric problems may have been aggravated by his service connected prostate cancer. Thus, as there is some clinical evidence of increased psychiatric distress following the Veteran's prostate cancer diagnosis (See eg. June 20, 2005, VA outpatient treatment report showing the Veteran was "feeling depressed" following his recent surgery for prostate cancer), the Board concludes that a VA examination that includes an opinion as to whether the Veteran's psychiatric problems have been aggravated by his prostate cancer is necessary in this case in order to comply with the duty to assist provisions of the VCAA. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner will also be requested to express an opinion addressing the impact of the Veteran's voiding problems on his ability to work. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA psychiatric examination that includes an opinion as to whether any psychiatric disorder pre-existing the diagnosis of prostate cancer, including major depressive disorder, was aggravated by his service connected prostate cancer. By aggravation, it is meant that the underlying disability associated with the Veteran's psychiatric disorder was worsened by prostate cancer. The examiner should also offer an opinion as to the extent to which the Veteran's voiding problems that require the changing of absorbent material impact his ability to maintain gainful employment. The claims files should be made available to the examiner for review prior to the examination, and a rationale provided for any opinion expressed. If it is not possible to provide either opinion sought, that likewise should be explained. 2. Thereafter, the claim for service connection for a major depressive disorder as secondary to prostate cancer must be readjudicated by the RO. The claim for TDIU, consistent with the resolution of the claim for service connection for major depressive disorder, should also be readjudicated. If this readjudication does not result in a complete grant of all benefits sought by the Veteran in connection with the claims that have been remanded, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time allowed for response. Thereafter, the case must be returned to the Board. 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). 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. 2009). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs