Citation Nr: 1304725 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 12-20 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 60 percent for prostate cancer with erectile dysfunction. 2. Entitlement to total disability due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran's spouse ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011, September 2011 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the June 2011 decision, the RO awarded service connection for prostate cancer with erectile dysfunction, rated as noncompensable, effective June 28, 2010. In the September 2011 decision, the RO assigned an increased rating of 60 percent rating, effective from June 28, 2010. In the January 2012 rating decision, the RO denied the Veteran's claim for TDIU. The Veteran and his wife attended a personal hearing that was chaired by the undersigned Veterans Law Judge (VLJ) at the Board's offices in Washington, D.C., in November 2012. A transcript of the hearing has been associated with the Veteran's file on the Virtual VA paperless claims processing system. Further review of the Virtual VA system reveals additional medical records that are pertinent to the Veteran's claims. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Since the award of service connection, the Veteran's prostate cancer with erectile dysfunction has not resulted in renal dysfunction. 2. The Veteran meets the schedular criteria for TDIU, but his service-connected disability does not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for prostate cancer with erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.115a, 4.115b, Diagnostic Code 7528 (2012). 2. The criteria for a TDIU due to prostate cancer with erectile dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is needed to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A service connection claim consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and, (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). Compliance with the first Quartuccio element requires notice of these five elements. See Dingess/Hartman, 19 Vet. App. at 486. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, notice under section 5103(a) is no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. Thus, because service connection for prostate cancer with erectile dysfunction was granted, VA's notice obligations with respect to the issue of entitlement to higher initial evaluation for this disability is fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In any event, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by letter mailed July 12, 2010. A letter addressing the TDIU claim was sent November 23, 2011. VA also has a duty to assist the claimant in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining his service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. In this case, the Veteran's STRs and post-service medical records have been obtained and associated with the file. VA arranged for the Veteran to have to examinations, which took place in July and August 2011. The Board finds that these examination reports are adequate to adjudicate the Veteran's appeal for a higher initial disability rating on the merits. Indeed, both examination reports reflect that the examiner was made aware of the Veteran's relevant past medical history, recorded his current complaints, conducted appropriate examinations, and rendered opinions consistent with the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to development of the claim has been met. 38 C.F.R. § 3.159(c)(4) (2011); Barr v. Nicholson, 21 Vet. App. 303 (2007). In regard to the provision of examinations, the duty to assist may require a new medical examination where the evidence indicates there has been a material change in a disability or that the current rating is incorrect. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. Here, the Veteran's wife submitted a statement in May 2012 that the Veteran's symptoms of swelling and weight loss had increased since the filing of the appeal. See Statement dated May 25, 2012. A statement such as this would ordinarily trigger a responsibility to provide another examination. However, in this case, and as will be discussed in more detail below, the symptoms mentioned in this statement have not been attributed to the Veteran's service-connected disability, thus their severity is not relevant to the issue under review. Further, the Veteran's medical records sufficiently describe the Veteran's symptoms, and there is no prejudice to the Veteran proceeding on the merits. Increased rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes (DCs) identify the various disabilities. See 38 C.F.R. Part 4 (2012). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). Pyramiding, the evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14 (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's prostate cancer with erectile dysfunction is currently rated under DC 7528, which applies to malignant neoplasms of the genitourinary system. See 38 C.F.R. § 4.115b (2012). Under DC 7528, a rating of 100 percent will initially be applied while malignant neoplasms are present, and will continue to be applied beyond cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures for six months, at which time a mandatory VA examination will take place. 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), which pertains to reducing disability evaluations. If there has been no local reoccurrence or metastasis, residuals are to be rated on voiding dysfunction or renal dysfunction, whichever is predominant, as set forth under 38 C.F.R. 4.115a. 38 C.F.R. § 4.115(b) (2012). The Veteran had a prostatectomy in 2005, and his condition was found to be in remission in August 2011. See QTC examination dated August 2011. A 60 percent rating was assigned in accordance with 38 C.F.R. § 4.115a, due to voiding dysfunction. A 60 percent rating due to voiding dysfunction is awarded when the symptoms require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. This is the highest rating available under voiding dysfunction. 38 C.F.R. § 4.115a (2012). A higher rating under 38 C.F.R. § 4.115a requires renal dysfunction. Id.; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1647 (31st ed. 2007) ("renal" pertains to the kidneys). An 80 percent rating is assigned for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent evaluation contemplates cases requiring regular dialysis, or precluding 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. Id. At the July 2011 QTC examination, laboratory results showed the Veteran's BUN was 13mg%, and his creatinine was 0.82mg%, both in normal range. Normal ranges for BUN and creatinine would be between 7 and 25, and between 0.76 and 1.46, respectively. See QTC examination dated June 13, 2011; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 436 (31st ed. 2007) ("creatinine" is "the cyclic anhydride of creatine...excreted in the urine; measurements of excretion rates are used as diagnostic indicators of kidney function..."). The August 2011 QTC examiner indicated the Veteran's symptoms consisted of leakage requiring absorbent material that needs to be changed four or more times a day, frequent day and night urination, and erectile dysfunction. He noted the Veteran had no other residual complications of prostate cancer. See QTC examination dated August 2, 2011. The Veteran was hospitalized in October 2011, for reasons unrelated to the current appeal, and laboratory tests were performed successfully over three days. On October 7, BUN was 7mg% and creatinine was 0.82mg%; on October 8, BUN was 6 mg% and c creatinine was 0.84mg%; and, on October 9, BUN was 6mg% and creatinine was 0.76mg%. See VA treatment dated October 11, 2011. Tests taken in January 2012 showed normal kidney function. His BUN was 17mg% and his creatinine was 0.73mg%. See VA treatment dated January 30, 2012. The Veteran was given a prescription to treat edema, which the physician thought was due to his extreme weight loss. Id. Tests taken in February 2012 showed a BUN of 15mg% and creatinine of 0.91mg%. See VA treatment dated February 1, 2012. Later, the Veteran's weight loss was linked to his dementia. See VA treatment dated June 5, 2012. During that time period, his weight was 128 pounds. Id. An examination in December 2010 also related the Veteran's weight loss to his dementia, as it was noted that he was unaware of hunger and had lost 50 pounds. He needed constant redirection to sit and feed himself. At the November 2012 hearing, the Veteran's wife testified that he has edema in his hands and feet, he is extremely lethargic with no energy, and that he has lost a significant amount of weight over the previous two years. At the hearing, his weight was reported to be 123 pounds. She also testified that she has to change his absorbent material, which he needs due to voiding dysfunction, six times a day. See Hearing transcript dated November 27, 2012. Based on the evidence, an initial rating in excess of 60 percent for the Veteran's prostate cancer with erectile dysfunction is not warranted, because the medical evidence does not show the Veteran has renal dysfunction. Although he does have some of the symptoms set forth in 38 C.F.R. § 4.115a, such as weight loss and edema, these symptoms have not been shown to be due to renal dysfunction. Indeed, his edema has been traced to his weight loss, and his weight loss has been traced to his dementia. In the absence of evidence showing that the Veteran has renal dysfunction, a higher rating cannot be attained under 38 C.F.R. § 4.115a. Again, the diagnostic testing of record shows that the Veteran has normal kidney function. In addition, no other potentially relevant diagnostic code for evaluating the genitourinary system is applicable in this case. He has the highest rating available for symptoms associated with voiding dysfunction. The only available higher ratings would require malignant neoplasms of the genitourinary system, or evidence of renal dysfunction, neither of which are present here. The Board acknowledges arguments presented that the Veteran's generalized poor health, characterized by weight loss, edema, and lethargy, qualifies him for an increased rating up to 80 percent. See Hearing transcript, page 3. However, while the Veteran and his family are competent to attest to the presence of these symptoms, Barr v. Nicholson, 21 Vet. App. 303 (2007), they are not competent to attest to the source of these symptoms. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Here, there is competent medical evidence that the Veteran does not have renal dysfunction, which forecloses the possibility of a rating in excess of 60 percent under 38. C.F.R. § 4.115a. With regard to staged ratings, the evidence is consistent in demonstrating that the Veteran has not shown renal dysfunction, thus a rating in excess of 60 percent is not warranted at any time. Extraschedular consideration The Board has considered whether the claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012). Because the ratings under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual claimant's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration, id., as the Board is precluded by regulation from assigning extraschedular ratings in the first instance. 38 C.F.R. § 3.321(b)(1) (2012). The governing norm in these cases is a finding that the disability 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. Id. The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Id. The Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., urine leakage causing absorbent materials to need to be changed more than four times a day, frequent urination, and erectile dysfunction) are contemplated by the rating criteria, as discussed above. Thus, there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. The evidence does not demonstrate that the Veteran's service-connected disability presents "such an exceptional or unusual disability picture...as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extraschedular consideration. See VAOPGCPREC 6-96. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. The Veteran's symptoms are not unanticipated by the rating criteria, and the Board finds that the available schedular evaluations are adequate to rate this disability. Therefore referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 115 (2008). Total disability due to individual unemployability (TDIU) In Rice v. Shinseki, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Veteran has explicitly asserted that his prostate cancer with erectile dysfunction prevents him from working. See, e.g., Hearing transcript, page 9. Where a veteran's schedular rating is less than total, a total disability rating may nevertheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided certain requirements are met. Under 38 C.F.R. § 4.16(a), if the veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the veteran has two or more such disabilities, then there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012); see also 38 C.F.R. § 4.25 (2012). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran currently is service-connected for one disability, prostate cancer with erectile dysfunction, which is rated at 60 percent disabling. Thus, he meets the schedular requirements under 38 C.F.R. § 4.16(a) for the assignment of a total rating. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor, due to a service-connected disability, which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran, despite a service-connected disability, is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record shows the Veteran is no longer working. He was a singer and songwriter, and last performed in 2009. See Hearing transcript, pages 9-10. However, the fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. As noted above, the question is whether the Veteran's service-connected disability precludes him of being capable to perform the physical and mental acts required by employment. The evidence shows that the symptoms of the Veteran's service-connected disability are voiding dysfunction, specifically leakage and the frequent need to urinate, and erectile dysfunction. Both QTC examination reports indicated that these symptoms would not affect his ability to work. In contrast, one of the Veteran's physicians opined that he is unemployable due to severe cognitive limitations, brought on by dementia. See Dr. E, dated May 1, 2012. The Veteran's representative has argued that the Veteran's symptoms of lethargy and weight loss, which he attributes to the Veteran's prostate cancer with erectile dysfunction, would prevent him from working. However, these symptoms are not attributed to the Veteran's service-connected disability, as discussed above. In order to obtain a TDIU, the Veteran must be able to show that he is unable to work due to service-connected disabilities. 38 C.F.R. § 4.16(a). He also argues that his leakage would prevent him from working. The QTC examiner, who authored both the July and August 2011 examination reports, opined that the Veteran's voiding dysfunction would not interfere with employment. This opinion, provided by a medical professional, is found to carry greater weight than the statements of the Veteran and his wife. Based on the foregoing, the evidence does not show the Veteran to be unemployable due solely to his service-connected disability. While the Veteran's prostate cancer with erectile dysfunction undoubtedly causes some impairment, the evidence does not show that this alone precludes him from obtaining gainful employment. Therefore, a TDIU is not warranted. 38 C.F.R. § 4.16(b) (2012). ORDER Entitlement to an initial evaluation in excess of 60 percent for prostate cancer with erectile dysfunction is denied. Entitlement to a TDIU is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs